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BOSTON SAFE DEPOSIT & TRUST CO. v. MORSE

December 26, 1991

BOSTON SAFE DEPOSIT AND TRUST COMPANY, PLAINTIFF,
v.
W. SHELLMAN MORSE, DEFENDANT.



The opinion of the court was delivered by: Mukasey, District Judge.

OPINION AND ORDER

Defendant W. Shellman Morse moves pursuant to Fed.R.Civ.P. 12(b)(2), (3) and (5) to dismiss the complaint filed by plaintiff Boston Safe Deposit and Trust Company ("BSDT") claiming that: 1) the court lacks personal jurisdiction over him; 2) service of process was insufficient; and 3) the Southern District of New York is not the proper venue. For the reasons set forth below, the motion is denied.

I.

On or about May 6, 1988, Morse executed a Demand Loan Note ("Note") in the amount of $550,000 in favor of BSDT. Plaintiff claims that defendant defaulted on repayment of the Note, and accordingly BSDT commenced this action on April 3, 1991.

Initially, I must determine whether this Court has personal jurisdiction over the defendant. In a case based on diversity of citizenship, federal courts apply the law of the forum state to determine whether to exercise personal jurisdiction over a defendant. United States v. First National City Bank, 379 U.S. 378, 381-82, 85 S.Ct. 528, 530-31, 13 L.Ed.2d 365 (1965); Hoffritz For Cutlery, Inc. v. Amajac, Ltd, 763 F.2d 55, 57 (2d Cir. 1985); Arrowsmith v. United Press International, 320 F.2d 219, 233 (2d Cir. 1963) (en banc). A defendant who is a New York domiciliary is subject to the jurisdiction of New York courts no matter how he or she is served with process. See N YCiv.Prac.L. & R 301, 313 (McKinney 1990). Any service of process on a domiciliary that is reasonably calculated to provide actual notice is constitutionally sufficient to confer jurisdiction. Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 342, 85 L.Ed. 278 (1940).

For purposes of diversity jurisdiction, a citizen has only one domicile, regardless of the number of residences that citizen maintains. Williamson v. Osenton, 232 U.S. 619, 625, 34 S.Ct. 442, 443, 58 L.Ed. 758 (1914); Willis v. Westin Hotel Co., 651 F. Supp. 598, 601 (S.D.N.Y. 1986); Yonofsky v. Wernick, 362 F. Supp. 1005, 1016 (S.D.N.Y. 1973); 1 J. Moore, Moore's Federal Practice ¶ 0.74 (2d ed. 1991). Because domicile would provide the only basis for personal jurisdiction over Morse in this action, the only relevant inquiry is whether the defendant is a domiciliary of New York.

Affidavits and other supporting materials may establish jurisdiction. Marine Midland Bank N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981). These documents should be construed in the light most favorable to the plaintiff. Hoffritz for Cutlery, Inc., 763 F.2d at 57; Beacon Enterprises, Inc., v. Menzies, 715 F.2d 757, 768 (2d Cir. 1983); Marine Midland Bank N.A., 664 F.2d at 904. As a result, to defeat Morse's motion to dismiss for lack of personal jurisdiction, BSDT need only establish a prima facie showing of jurisdiction. Beacon Enterprises, Inc., 715 F.2d at 768; Cavalier Label Co. v. Polytam Ltd., 687 F. Supp. 872, 875 (S.D.N.Y. 1988).

Defendant claims that this court lacks personal jurisdiction over him because he changed his domicile from New York, where he resided when he executed the Note, to Colorado. (Morse Aff. ¶ 2) A party alleging a change of domicile must establish two elements: "[r]esidence in fact, coupled with the purpose 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); Mitchell v. United States 88 U.S. (21 Wall.) 350, 353, 22 L.Ed 584 (1875); see also Bache Halsey Stuart, Inc. v. Namm, 446 F. Supp. 692, 694 (S.D.N.Y. 1978). Moreover, defendant must prove both elements by clear and convincing evidence, District of Columbia v. Murphy, 314 U.S. 441, 455, 62 S.Ct. 303, 309, 86 L.Ed. 329 (1941); Mitchell, 88 U.S. (21 Wall.) at 353; Katz v. Goodyear Tire and Rubber Co., 737 F.2d 238, 243 (2d Cir. 1984), before he can rebut the presumption that a person retains his old domicile until he acquires a new one. Lew v. Moss, 797 F.2d 747, 750 (9th Cir. 1986); Willis v. Westin Hotel Co., 651 F. Supp. at 603.

Intent is the crux of the test because physical presence alone in a new location is insufficient to support a change of domicile. This court in Brignoli v. Balch, Hardy, & Scheinman, Inc, 696 F. Supp. 37, 41 (S.D.N.Y. 1986), found that the following factors were relevant to determining an individual's intent to be domiciled in a particular state:

  where a person resides, whether he owns a home or
  pays rent . . . where his family and personal
  belongings are located . . . where he maintains
  affiliations with religious and social
  organizations, where he transacts business and
  financial matters, where he pays personal taxes,
  and where he obtains a drivers license.

See also Farrell v. Ashton, 1991 WL 29261, *2, 1991 U.S.Dist. Lexis 2331, *2 (S.D.N.Y. 1991).

Other jurisdictions have adopted these factors and recognized that additional factors, including voting registration and voting practices, may be relevant. Lew, 797 F.2d at 750. No single factor determines one's intent to remain in the state indefinitely. Id.

Morse, in his affidavit, states that he has been a domiciliary of Colorado since June 1990. He relies simply on his declaration that he is registered to vote and has paid taxes in Colorado in order to establish his Colorado domicile. (Morse Aff. ¶ 2) However, his affidavit does not include any dates when he actually voted, nor does he append a Colorado state tax return to support his representations. Furthermore, he makes no showing regarding any of the other factors set forth in Brignoli, 696 F. Supp. at 41.

Voting registration and voting are two different things. Everett v. Brief No. 82 Civ. 3153, slip op., 1985 WL 3563 (S.D.N.Y. November 1, 1985). Because the moving party in Everett failed to show an existing pattern of voting practices, little weight was given to "voter registration" as evidence of a change of domicile. Id. This case resembles ...


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