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September 3, 1986


The opinion of the court was delivered by: NICKERSON


NICKERSON, District Judge

Plaintiff Edmund Gudaitis, a New York citizen, brought this diversity action against defendants John, Aldona and Aldute Adomonis, Massachusetts citizens. John, who died after plaintiff brought the action, and Aldona were married, and Aldute is their adopted daughter and niece. Defendants move to dismiss the complaint pursuant to Rule 12(b) of the Federal Rules of Civil Procedure for lack of personal and subject matter jurisdiction, for improper venue, for failure to state a claim and for failure to join a necessary party. Defendants also seek sanctions under Rule 11.

 Plaintiff alleges the following. In September 1982 John and Aldona persuaded him to travel to Vilnius, Lithuania to meet their niece Monika (Aldute's sister). They offered to pay for the trip and assisted him in his travel plans and obtaining a passport. Defendants corresponded frequently with him about the trip, and John, while in New York on business, discussed the trip with him.

 Plaintiff visited Lithuania in October 1982 and met and fell in love with Monika. With defendants' assistance he returned to Lithuania in December 1982 and married Monika.

 During the next year and a half plaintiff, again with the help of defendants, arranged for Monika and her daughter from a previous marriage to emigrate to the United States. John came to New York in the fall of 1983 and encouraged plaintiff to obtain the necessary documents and to establish a home for his new family.

 Unbeknown to plaintiff Monika and her daughter arrived in Boston in January 1984 and moved in with defendants in Massachusetts. She told plaintiff that defendants refused to allow her to speak with him and that she had decided to remain with them because they promised her a more financially secure life.

 In August 1984 plaintiff received Monika's green card but returned it to the Department of Immigration and Naturalization in New York because he was convinced that "this would never be a true marriage." In March 1985 he filed for divorce.

 Defendants' claim that this court has no subject matter jurisdiction because the action in substance involves domestic relations and is excepted from this court's diversity jurisdiction. In Kilduff v. Kilduff, 473 F. Supp. 873 (S.D.N.Y. 1979), cited by defendants, the court declined jurisdiction because the action arose directly from custody and other marital disputes. In Bennett v. Bennett, 221 U.S. App. D.C. 90, 682 F.2d 1039 (D.C. Cir. 1982), the other case cited by defendants, the court held that it had no jurisdiction to grant the requested injunctive relief, but that it could award damages for the alleged torts.

 This case does not involve a marital dispute. Plaintiff has not alleged that Monika engaged in tortious conduct. Plaintiff's tort theories are premised on defendants' fraudulently inducing him to marry Monika and interfering with his marriage. The fact that he pleads interference with a marital relationship is insufficient to remove this action from the court's jurisdiction. See Spindel v. Spindel, 283 F. Supp. 797 (E.D.N.Y. 1968) (court has subject matter jurisdiction over action alleging fraudulent inducement to marry and fraudulent procurement of divorce).

 This court also has personal jurisdiction over defendants. The acts of defendants in New York State satisfy the requirements of due process and New York law. See Arrowsmith v. United Press Int'l, 320 F.2d 219, 223 (2d Cir. 1963). Section 302(a)(2) of New York Civ. Prac. Law states in pertinent part that a court may exercise personal jurisdiction over a nondomiciliary who "commits a tortious act within the state."

 Plaintiff states that on more than one occasion John visited him in New York and discussed details of the scheme, and that Aldute also came to New York in furtherance of the scheme. Defendants deny that such visits with plaintiff occurred.

 Plaintiff bears the burden of establishing that defendant is subject to the court's jurisdiction. The court, however, should construe all pleadings and affidavits in plaintiff's favor. Ghazoul v. International Management Systems, Inc., 398 F. Supp. 307 (S.D.N.Y. 1975). When issues dispositive of jurisdiction overlap with the merits of the case the court may determine whether there is "threshold" jurisdiction sufficient to allow the action to continue to preserve judicial resources. Bialek v. Racal-Milgo, Inc., 545 F. Supp. 25 (S.D.N.Y. 1982). Under this standard plaintiff must make a prima facie showing that personal jurisdiction exists. Plaintiff's allegations, if proven, are sufficient to establish that defendants John and Aldute committed tortious acts within New York and show the requisite "minimum contacts" between defendants and New York to meet the due process test for personal jurisdiction. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 62 L. Ed. 2d 490, 100 S. Ct. 559 (1980).

 This court also has jurisdiction over defendant Aldona Adomonis. A court may attribute the acts of a defendant to his coconspirators for jurisdictional purposes if the plaintiff makes a prima facie showing of conspiracy. ...

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