The opinion of the court was delivered by: Cedarbaum, District Judge.
Ida Hakkila sues Consolidated Edison of New York ("Con
Edison") for damages for an alleged injury from an electrical
shock that she received from a subway grating.
At a pre-trial conference on March 21, 1990, counsel for Con
Edison requested an order dismissing this action on the ground
that there is no diversity of citizenship between Hakkila and
Con Edison and thus no jurisdiction in this court. At my
direction, both parties addressed the diversity issue by
There is no dispute that Con Edison, a corporation having
its principal place of business in New York City, is a citizen
of New York. The disputed question is whether Hakkila is also
a citizen of New York City as Con Edison contends or a citizen
of Alaska as she alleges. For following reasons, defendant's
motion to dismiss for lack of jurisdiction is denied.
The undisputed facts are taken from Hakkila's deposition of
January 12, 1990, and her affidavit of April 23, 1990. Hakkila
is a twenty-year-old college student. She was born in Alaska
and lived there until her parents were divorced when she was
five or six years old. At that time, she moved to Connecticut
with her mother. Hakkila lived in Connecticut with her mother
and at boarding school in Connecticut until she entered
college in September of 1987.
Hakkila spent the summer of 1986 in Alaska, and she affirms
that at that time she decided she would ultimately return to
Alaska and make it her home. She returned to Connecticut at
the end of that summer, was graduated from high school there,
and lived in Connecticut during the summer of 1987.
In September of 1987, Hakkila enrolled at New York
University ("NYU") in Manhattan, and moved into university
housing at 75 Third Avenue in Manhattan. Her major at NYU has
been in radio. While attending NYU, she held various part-time
jobs in Manhattan. These included a work-study job in the NYU
Audio Department, working as a salesclerk in a store, and
working as a waitress in two local coffee shops. Hakkila spent
summers of 1988 and 1989 in Alaska, although she also was
employed in a coffee shop in Manhattan during part of the
summer of 1988. In 1988, Hakkila registered to vote in
Manhattan. Finally, Hakkila has sworn that she considers
Alaska to be her home and intends to go there upon graduation
It is well established that domicile is not synonymous with
residence. See Mississippi Bank of Choctaw Indians v.
Holyfield, 490 U.S. 30, 109 S.Ct. 1597, 1608, 104 L.Ed.2d 29
(1989). Rather, the elements of domicile are "residence in
fact, coupled with the intent to make the place of residence
one's home," Texas v. Florida, 306 U.S. 398, 424. 59 S.Ct. 563,
576, 83 L.Ed. 817 (1939); see Spanos, 364 F.2d at 163.
In order for an individual to acquire a new domicile, both
of these elements, a change of residence and an intent to
remain at the new residence indefinitely, are necessary. An
old domicile continues, despite a change of residence, until
there is an intent to create a new home. Mitchell v. U.S., 88
U.S. (21 Wall.) 350, 353, 22 L.Ed. 584 (1875); Spanos, 364 F.2d
at 163. The party alleging a change of domicile must prove both
elements by clear and convincing evidence. See Mitchell, 88
U.S. at 353; Katz v. Goodyear Tire and Rubber Co.,
737 F.2d 238, 243 (2d Cir. 1984); Delaware, L. & W.R. Co. v. Petrowsky,
250 F. 554, 558 (2d Cir.), cert denied, 247 U.S. 508, 38
S.Ct. 427, 62 L.Ed. 1241 (1918); Willis v. Westin Hotel Co.,
651 F. Supp. 598, 603 (S.D.N.Y. 1986).
This action was commenced on August 25, 1989, when Hakkila
was about to begin her third year of college at NYU. Although
neither party has shown where Hakkila was residing on that
date, it is not disputed that she resided in New York during
the school year and in Alaska during the summers. It is also
clear that Hakkila was a domiciliary of Connecticut, and not
New York, before she entered college. Since a domicile for her
in either Connecticut or Alaska provides the necessary
diversity of citizenship, I need not decide whether Hakkila
changed her domicile from Connecticut to Alaska but only
whether Con Edison has met its burden of proving that Hakkila
has acquired a New York domicile. Con Edison has failed to
meet this burden.
In order to prove that Hakkila changed her domicile to New
York, Con Edison must show that her move to New York involved
"the intention to create a new home." Spanos, 364 F.2d at 163.
Because Hakkila attends college in New York, her move to New
York does not show the required intent to remain here
indefinitely. Hakkila's enrollment at NYU explains her
residence in ...