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Margaret Antonier v. Robert Miller

February 23, 2012

MARGARET ANTONIER, PLAINTIFF,
v.
ROBERT MILLER, RODNEY MILLER, FREDERICK MILLER, AS TRUSTEES OF THE ROBERT MILLER SPOUSAL TRUST, DEFENDANTS.



ORDER

This cause comes before the Court on Defendant Robert Miller's Motion to Dismiss. (Doc. No. 7). Plaintiff opposes the motion. (Doc. No. 11). Both parties filed reply briefs. (Doc. No. 19, 29). As explained below, the motion to dismiss is granted to the extent that the Court finds that it lacks subject matter jurisdiction over this case.*fn1

I. Background

On May 20, 2011, Plaintiff Margaret Antonier filed suit against her former husband, Defendant Robert Miller, and her two sons, Defendants Rodney Miller and Frederick Miller, with regard to their alleged role as Trustees of the Robert Miller Spousal Trust ("Trust"). Specifically, Plaintiff alleges that despite the fact that she is the sole income beneficiary of the Trust, which was created in 2005, she has never received any of the income from the Trust. As a result, Plaintiff asserts a claim against Defendants for an accounting.

II. Subject Matter Jurisdiction

Plaintiff alleges that this Court has diversity subject matter jurisdiction over this case. Plaintiff is a Canadian citizen, but she resides in Florida because the United States has awarded her "treaty investor status" under the E-2 visa program.*fn2 Plaintiff contends that her "treaty investor status" is similar to permanent resident status. See Hall v. McLaughlin, 864 F.2d 868, 870-71 (D.C. Cir. 1989).

Defendants Robert Miller, Rodney Miller, and Frederick Miller are Canadian citizens that reside in Canada. Because Plaintiff and Defendants are all Canadian citizens, Defendant Robert Miller filed the instant motion to dismiss for lack of subject matter jurisdiction.*fn3

Specifically, he argues that this Court does not have diversity jurisdiction over a case solely involving alien parties.

Plaintiff responds that this Court has diversity jurisdiction due to the final sentence of 28 U.S.C. § 1332(a), which at the time that this lawsuit was filed,*fn4 provided that certain aliens were deemed citizens of the state in which they were domiciled. Specifically, at the time that this lawsuit was filed, § 1332(a) provided that this Court has original jurisdiction over all civil actions in which the matter in controversy exceeds $75,000.00 in value and is between:

(1) citizens of different States;

(2) citizens of a State and citizens or subjects of a foreign state;

(3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and

(4) a foreign state . . . as plaintiff and citizens of a State or of different States.

The final sentence of § 1332(a) (which courts have referred to as "the deeming clause") contained the following statement: "For purposes of this section . . . an alien admitted to the United States for permanent residence shall be deemed a citizen of the State in which such alien is domiciled." Plaintiff argues that due to the deeming clause of § 1332(a), she is deemed to be a citizen of Florida. As such, Plaintiff argues that this Court has diversity jurisdiction over this case, pursuant to § 1332(a)(2), because it is a civil action between a "deemed" citizen of Florida and citizens of Canada. This argument, however, is flawed.

Several courts addressing the deeming clause of § 1332(a) have found that the clause was added to § 1332(a) in 1988 for the purpose of reducing diversity jurisdiction. See, e.g., Saadeh v. Farouki, 107 F.3d 52 (D.C. Cir. 1997); Banci v. Wright, 44 F. Supp.2d 1272, 1275 (S.D. Fla. 1999); Eridan Shipping Ltd. v. Filatov, 2008 WL 613151, at *1 (S.D.N.Y. Mar. 5, 2008); Cahote v. Sumbe, 2008 WL 2622990, at *3 (S.D. Tx. June 27, 2008); Gardiner v. Kelowna Flightcraft, Ltd., 2011 WL 3904997, at *6 (S.D. Ohio Sept. 6, 2011). Specifically, such courts noted that the legislative history revealed that the deeming clause was added in order to divest federal courts of jurisdiction over cases between a citizen of state A and a permanent resident alien domiciled in state A. See id. ...


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