Golub v. Berdon LLP
1:19-cv-10309
S.D.N.Y.Feb 14, 2023Background
- Dr. J. David Golub sued Berdon LLP alleging federal (ADEA, FCA, TFA) and state-law claims arising from his termination; federal claims were previously dismissed (some with prejudice).
- After dismissal of the federal claims, the court held an evidentiary hearing to determine whether it had diversity jurisdiction over the remaining state-law claims as of the filing date (Nov. 4, 2019).
- Golub claimed South Carolina domicile based on a 2016 purchase of a home there; he and his wife, however, continuously resided in New Jersey from 2016–2022 and rented out the South Carolina property.
- Objective indicia (New Jersey driver’s license, vehicle registration, voting registration, treating physicians, regular residence and religious attendance) pointed to New Jersey; Golub never registered to vote in South Carolina and had no South Carolina employment.
- The court found Golub was domiciled in New Jersey on Nov. 4, 2019; because Berdon’s members were citizens of New York and New Jersey, complete diversity did not exist.
- The court declined to exercise supplemental jurisdiction over the state claims and dismissed them without prejudice; federal claims were dismissed with prejudice and the case was closed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court had diversity jurisdiction at the time of filing | Golub: domiciled in South Carolina as of 2016, so not a citizen of NY or NJ | Berdon: Golub was domiciled in New Jersey at filing, so no complete diversity | Court: No diversity—Golub domiciled in New Jersey on filing date; state claims dismissed for lack of subject-matter jurisdiction |
| Whether Golub changed domicile to South Carolina in 2016 | Golub: eviction from Staten Island and purchase of SC home established SC domicile | Berdon: Golub never actually resided or manifested intent to remain in SC; continued NJ residence and ties | Court: Change of domicile not proven by clear and convincing evidence—residence plus intent lacking |
| Which factors govern domicile inquiry and standard of proof | Golub: asserted intent to make SC home | Berdon: party alleging change must prove residence + intent, burden on plaintiff | Court: Applied factors (residence, licenses, voting, doctors, etc.) and held plaintiff bears burden to prove change of domicile by clear and convincing evidence |
| Whether to exercise supplemental jurisdiction over state claims if diversity lacking | Golub: (implicitly) allow state claims to proceed in federal court | Berdon: decline supplemental jurisdiction given dismissal of federal claims early | Court: Declined to exercise supplemental jurisdiction; dismissed state claims without prejudice |
Key Cases Cited
- Strawbridge v. Curtiss, 7 U.S. 267 (establishes requirement of complete diversity)
- Universal Licensing Corp. v. Paola Del Lungo, S.P.A., 293 F.3d 579 (diversity must exist when action commences)
- Linardos v. Fortuna, 157 F.3d 945 (domicile determines citizenship for diversity)
- Makarova v. United States, 201 F.3d 110 (party asserting jurisdiction bears the burden)
- Carden v. Arkoma Assocs., 494 U.S. 185 (LLP citizenship is that of all members)
- Palazzo ex rel. Delmage v. Corio, 232 F.3d 38 (change of domicile requires residence plus intent; clear-and-convincing standard)
- Kennedy v. Trs. of Testamentary Tr. of Will of Kennedy, 633 F. Supp. 2d 77 (lists factors relevant to domicile inquiry)
- Galu v. Attias, 923 F. Supp. 590 (party may have multiple residences but only one domicile)