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