         09-2911-pr
         Braten v. Kaplan




                         UNITED STATES COURT OF APPEALS
                             FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.    CITATION TO A SUMMARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
     APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
     IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
     MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 18 th day of January, two thousand eleven.
 5
 6       PRESENT: DENNIS JACOBS,
 7                         Chief Judge,
 8                   RICHARD C. WESLEY,
 9                   DENNY CHIN,
10                         Circuit Judges.
11       ______________________________________________________
12
13       MILTON BRATEN,
14
15                   Plaintiff-Appellant,
16
17                   -v.-                                             09-2911-pr
18
19       ELIOT KAPLAN,
20
21                   Defendant-Appellee.
22       ______________________________________________________
23
24
25       FOR APPELLANT:                MILTON BRATEN, pro se, Greenville,
26                                     SC.




                                                1
 1
 2   FOR APPELLEE:          STEPHEN D. STRAUS, DANIEL G. ECKER,
 3                          Traub Lieberman Straus &
 4                          Shrewsberry, LLP, Hawthorne, NY.
 5
 6        UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED,
 7   AND DECREED that the judgment of the district court be
 8   AFFIRMED.
 9
10        Plaintiff-Appellant Milton Braten, pro se, appeals from
11   the March 15, 2009 judgment of the United States District
12   Court for the Southern District of New York (Baer, J.)
13   dismissing his complaint for lack of subject matter
14   jurisdiction, and its June 1, 2009 order denying his motion
15   for reconsideration. We assume the parties’ familiarity
16   with the underlying facts and the procedural history of the
17   case.
18
19        This Court reviews the district court’s dismissal of a
20   complaint for lack of subject matter jurisdiction de novo,
21   see Bigio v. Coca-Cola Co., 239 F.3d 440, 447 (2d Cir.
22   2000), and the denial of a motion for reconsideration for
23   abuse of discretion, see Harris v. Kuhlmann, 346 F.3d 330,
24   357 (2d Cir. 2003). We review the district court’s factual
25   findings regarding domicile--whether there has been a change
26   in residence, and intent of permanence--for clear error.
27   See Palazzo ex rel. Delmage v. Corio, 232 F.3d 38, 42 (2d
28   Cir. 2000). A party seeking diversity jurisdiction bears
29   the burden of establishing that diversity exists. See
30   Herrick Co. v. SCS Commc’ns, Inc., 251 F.3d 315, 322-23 (2d
31   Cir. 2001). After having reviewed the appellant’s
32   contentions on appeal and the record of proceedings below,
33   we affirm for substantially the same reasons stated by the
34   district court in its thorough opinion.
35
36        We have considered Braten’s remaining arguments on this
37   appeal and have found them to be without merit. For the
38   foregoing reasons, the judgment of the district court is
39   hereby AFFIRMED.
40                               FOR THE COURT:
41                               Catherine O’Hagan Wolfe, Clerk
42
43


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