Grammer v. Melnik

49 V.I. 695, 2008 WL 501251, 2008 U.S. Dist. LEXIS 12209
CourtDistrict Court, Virgin Islands
DecidedFebruary 14, 2008
DocketCivil No. 2007-73
StatusPublished
Cited by1 cases

This text of 49 V.I. 695 (Grammer v. Melnik) is published on Counsel Stack Legal Research, covering District Court, Virgin Islands primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Grammer v. Melnik, 49 V.I. 695, 2008 WL 501251, 2008 U.S. Dist. LEXIS 12209 (vid 2008).

Opinion

GÓMEZ, Chief Judge

MEMORANDUM OPINION AND ORDER

(February 14, 2008)

Before the Court is the motion of Plaintiff, John T. Grammer (“Grammer”), to remand the above-captioned case to the Superior Court of the Virgin Islands.

[697]*697FACTS

Robert Melnik and his wife, Mary Elizabeth Melnik (collectively “the Melniks”), resided at 11233 Silver Lake Road in Brighton, Michigan for fourteen years. The Melniks owned property located at 6A-6Y Estate Hansen Bay, St. John, Virgin Islands (“the property”). The Melniks decided to construct a home on that property to be their new residence. On or about June 24, 2005, the Melniks allegedly entered into a construction contract with Grammer to build a home on the property. The Melniks obtained a loan from First Bank of Puerto Rico (“First Bank”) to finance the construction.

In July, 2006, the Melniks made plans to travel to St. John to move into their new home. That same month, Grammer requested a payment from the Melniks for what the Melniks understood were construction costs. First Bank refused Grammer’s request. The Melniks requested an accounting from Grammer. The Melniks did not receive an accounting. Grammer then gave the Melniks an ultimatum: to make payment or the construction on the home would be discontinued. The Melniks did not make a payment for the construction to Grammer. Grammer ceased work on the home.

Thereafter, the Melniks contracted with Sunnyrock Design and Construction, Inc. to complete the home. In the latter months of December, 2006, the Melniks realized that they could not afford the continuing costs to pay the contractor. From February, 2007, to May, 2007, Robert Melnik visited St. John to work on the house. In May, 2007, he returned to Michigan. He returned to St. John in June, 2007. In August, 2007, Mary Melnik joined her husband in St. John.1

The Melniks own a business named Dealers Financial Services (“DFS”) in Michigan. In contemplation of moving to St. John, the Melniks had sold a substantial portion of the assets of DFS.2 The Melniks had also sold their home in Brighton, Michigan. Robert Melnik owned a [698]*698home in South Lyon, Michigan, where Mary Melnik was residing in October, 2007.3

Grammer filed an action in the Superior Court of the Virgin Islands naming the Melniks, the Government of the Virgin Islands, and First Bank Puerto Rico as defendants. In his complaint, Grammer alleged that he was a citizen of St. John, United States Virgin Islands, and that the Melniks were citizens of the state of Michigan.

On April 30, 2007, the Melniks filed a notice of removal to this Court based on diversity jurisdiction. Grammer now seeks remand of the case to the Superior Court arguing that Robert Melnik is a citizen of the Virgin Islands and, as such, there is no diversity jurisdiction.

DISCUSSION

An action may be removed to federal district court if the district court would have original jurisdiction over the action. See 28 U.S.C. § 1441(a); Feuerzeig v. Innovative Communication Corp., 174 F. Supp. 2d 349, 352 (D.V.I. 2001). A district court has original jurisdiction over civil cases where there is diversity of citizenship and where the amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a).

A court will remand a removed case “if at any time before final judgment, it appears that the district court lacked subject matter jurisdiction.” 28 U.S.C. 1447(c). Removal statutes are to be strictly construed against removal and all doubts should be resolved in favor of remand. Abels v. State Farm Fire & Casualty Co., 770 F.2d 26, 29 (3d Cir. 1985). The removing party has the burden of establishing federal jurisdiction. See Feuerzeig, 174 F. Supp. 2d at 353 (quoting Gateway 2000, Inc. v. Cyrix Corp., 942 F. Supp. 985, 989 (D.N.J. 1996) (“When considering a motion to remand, the removing party has the burden of establishing the propriety of the removal.”).

To meet the jurisdictional requirement for federal subject matter jurisdiction, the diversity must be complete. Quaker State Dyeing & Finishing Co. v. ITT Terryphone Corp., 461 F.2d 1140, 1142 (3d Cir. 1972). In other words, “no plaintiff can be a citizen of the same state as [699]*699any of the defendants.” Id. Citizenship is determined by a party’s domicile. See Frett-Smith v. Vanterpool, 48 V.I. 402, 406 (D.V.I. 2006) (citing Juvelis v. Snider, 68 F.3d 648, 654 (3d Cir. 1995) (“Citizenship for the purpose of establishing diversity jurisdiction is the same as domicile.”)). Domicile, in turn, is determined by physical presence or residence in a state, combined with an intent to remain there indefinitely. Juvelis, 68 F.3d at 654.

ANALYSIS

A. Citizenship of Robert Melnik

The Melniks contend that Robert Melnik never established a domicile in the Virgin Islands. Rather, the Melniks argue that Robert Melnik retained his Michigan domicile. The Melniks further argue that Robert Melnik’s sole intention upon coming to the Virgin Islands was to complete the construction on the property to make it ready for rental. It is well-settled that “[a] domicile once acquired is presumed to continue until it is shown to have changed.” Korn v. Korn, 398 F.2d 689, 691, 6 V.I. 296 (3d Cir. 1968) (quoting Mitchell v. United States, 88 U.S. 350, 353, 22 L. Ed. 584, 10 Ct. Cl. 120 (1875)). When a party opposing federal jurisdiction claims a change in domicile, that party bears the burden of producing sufficient evidence to rebut the presumption in favor of the established domicile. McCann v. Newman Irrevocable Trust, 458 F.3d 281, 288 (3d Cir. 2006).

The Court considers several factors to determine a change of domicile: establishment of a home, place of employment, location of assets, registration of a car, and generally, the center of one’s business, domestic, social and civic life in a jurisdiction. Id. Other factors to be considered may include location of bank accounts, location of spouse and family, driver’s license and vehicle registration. McCann v. Newman Irrevocable Trust, 458 F.3d 281, 286 (3d Cir. 2006).

Grammer points to several facts to indicate that Robert Melnik changed his domicile. First, Grammer points to the fact that Robert Melnik has remained in St.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Hood v. Fresenius Medical Care Holdings, Inc.
76 F. Supp. 3d 268 (D. Massachusetts, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
49 V.I. 695, 2008 WL 501251, 2008 U.S. Dist. LEXIS 12209, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grammer-v-melnik-vid-2008.