O’Toole Scrivo, LLC attorneys, Thomas P. Scrivo and James DiGiulio, secured a dismissal of a federal complaint filed against Michael Lerner, a partner at Lowenstein Sandler, LLP. Angela Krivulka, the widow of Joseph Krivulka, filed suit against Lowenstein Sandler and Mr. Lerner, in her individual capacity and on behalf of Mr. Krivulka’s estate, alleging breaches of fiduciary duties. OS lawyers moved to dismiss the complaint arguing that the plaintiff failed to demonstrate the required diversity of citizenship among the parties. U.S. District Judge Claire C. Cecchi dismissed the complaint finding that Mr. Krivulka was domiciled in the State of New Jersey at the time of his death, which is the state of citizenship of the defendants.
The District Court found that Mr. Krivulka intended for New Jersey to be his domicile. The Court relied on the statements of Mr. Krivulka prior to his death, in which he informed his attorneys that he did not want to change his domicile from New Jersey to Arizona. In addition, the Court noted that Mr. Krivulka had significant ties to New Jersey, including that he was registered to vote in New Jersey, filed resident tax returns in the State, had a New Jersey driver’s license, and controlled multiple residential properties in the State. Moreover, following his death, Mrs. Krivulka signed tax returns for his estate, indicating he had been domiciled in New Jersey.
The complaint was dismissed, without prejudice, leaving Mrs. Krivulka the option to try and re-file claims, individually, but not on behalf of the Estate of Mr. Krivulka.
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