United States District Court, Southern District of New York
December 26, 1991
BOSTON SAFE DEPOSIT AND TRUST COMPANY, PLAINTIFF,
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.
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 Everett. Little
consideration should be given to Morse's mere registration to
vote in Colorado.
Plaintiff has submitted several affidavits which contradict
defendant's contention that he changed domicile prior to the
commencement of this action. Defendant signed a Citibank
financial statement on July 27, 1990, dated as of June 30,
1990, which listed his New York address. (DeChristofaro Aff.
Exh. A) Morse also signed a certified, return receipt card
attached to a letter mailed to his New York address on January
15, 1991. (DeChristofaro Aff. Exh. B) Furthermore, defendant
mailed to plaintiff a handwritten letter dated February 27,
1991 on which the return address was his New York apartment.
(DeChristofaro Aff. Exh. C) In addition, this letter,
postmarked Aspen, Colorado, states that he "ha[s] been
travelling . . . and will call next week." (Id.)
Based on that evidence, plaintiff claims that defendant
still resides in New York and is therefore subject to New York
jurisdiction. The affidavits must be read in the light most
favorable to the plaintiff. Hoffritz for Cutlery, Inc., 763
F.2d at 57, supra. If the affidavits are read in that manner,
defendant has failed to adduce clear and convincing evidence
even of his continuing physical presence in Colorado, let alone
of his intent to remain in Colorado
indefinitely. Thus, he has failed to defeat the presumption
that he maintains his New York domicile until he establishes
a new domicile. Accordingly defendant, must be regarded as a
New York domiciliary and his motion to dismiss for lack of
personal jurisdiction must be denied.
Defendant claims that service of process is insufficient
under Fed.R.Civ.P. 4(d)(1) which requires that if service is
effected by leaving process with someone at defendant's
dwelling, that person must be of suitable age and discretion.
Morse claims that service of process did not comply with
either of these conditions. He asserts that the summons and
complaint were served upon a housekeeper, Becky Castillo, a
part-time employee who speaks limited English. However,
Fed.R.Civ.P. 4(c)(2)(C)(i) provides for service of a summons
and complaint upon an individual "pursuant to the law of the
State in which the district court is held for the service of
summons or other like process upon such defendant in an action
brought in the courts of general jurisdiction of that State.
. . ."
Section 308(2) of New York's Civil Practice Law and Rules
provides in pertinent part:
Personal service upon a natural person shall be
made by any of the following methods: . . . 2. by
delivering the summons within the state to a
person of suitable age and discretion at the . .
. usual place or abode of the person to be served
and by either mailing the summons to the person to
be served at his or her last known residence. . . .
N.Y.Civ.Prac.L. & R. 308(2) (McKinney 1990).
Although Fed.R.Civ.P. 4(d)(1) requires that a person other
than the defendant served at defendant's dwelling also reside
at the premises, Fed.R.Civ.P. 4(c)(2)(C)(i) which permits
reliance on CPLR § 308(2), is an alternative to Fed.R.Civ.P.
4(d)(1) for serving of process. See Orbis Marine Enterprises v.
TEC Marine, 692 F. Supp. 280, 285 (S.D.N.Y. 1988). "The general
thrust of the authorization in Fed.R.Civ.P. 4(c)(2)(C)(i) . . .
to use state procedures in making service is to enable a
federal court to serve process on any defendant who could be
reached by process issuing from a court of the state in which
it sits, assuming the requirements of federal subject matter
jurisdiction and venue are met." C. Wright & A. Miller, Federal
Practice & Procedure: Civil § 1115 (2d ed. 1987). Because CPLR
§ 308(2) permits service on anyone of suitable age and
discretion at defendant's residence, it does not matter if the
housekeeper did not reside therein.
Defendant also claims the housekeeper's limited English
deprives her of the discretion to accept process. "Discretion
. . . [for service of process] denotes . . . the capacity and
maturity to act wisely and prudently." City of New York v.
Chemical Bank, 122 Misc.2d 104, 470 N.Y.S.2d 280, 286 (N Y
Sup. Ct. 1983); see Guccione v. Flynt, 618 F. Supp. 164, 169
(S.D.N.Y. 1985). Defendant has not explained why a person
cannot be wise and prudent in a foreign language. Even minimal
understanding of the English language should be sufficient for
a showing of suitable discretion, if the individual can
comprehend the circumstances of service.
In any event, both parties acknowledge that the summons and
complaint were served at the apartment building on a woman
working in defendant's residence as a housekeeper.
(See McKinnon Aff. ¶ 4 and Siegel Aff. ¶ 2) This apartment
building was Morse's residence on May 6, 1988, and was equipped
with an intercom system. (McKinnon Aff. ¶ 3) The process server
"saw three intercom speakers below one large speaker. A nametag
and a button were located to the right of each of the three
smaller speakers." (Id.) He depressed the button that was to
the right of the button labelled "W. Shellman Morse," and
stated to the man who answered that he had a "delivery for
Shellman Morse." (Id.) The housekeeper was sent to "pick up the
`delivery.'" (Id. at ¶ 4) In addition, the process server asked
the housekeeper if Mr. Morse lived at this address and she
responded "yes but . . . he is not home, I am his housekeeper
and I live here." (Id.)
Defendant's argument that the housekeeper lacked proper
discretion to receive effective service is irrelevant. At a
minimum, the man who answered the intercom and instructed
housekeeper to receive the delivery clearly did have such
discretion; she was acting at least as an extension of that
man. Therefore, there is no need to determine whether or not
she had the discretion to receive process.
Since plaintiff has complied with service of process under
CPLR 308(2) by serving a person of suitable age and discretion
and also mailing a copy of the summons and complaint to the
defendant, defendant's motion to dismiss for insufficiency of
service of process must be denied.
Morse has failed to rebut the presumption that he has
changed his domicile, and must be considered for the purposes
of this action a domiciliary of New York. Title 28 U.S.C. § 1391(a)
provides in pertinent part:
"A civil action wherein jurisdiction is founded
only on diversity of citizenship may, except as
otherwise provided by law, be brought only in (1)
a judicial district where any defendant resides,
if all defendants reside in the same State. . .
." 28 U.S.C. § 1391(a) (1990).
Once it is decided that defendant is domiciled in this
District, the Southern District of New York is an appropriate
venue under 28 U.S.C. § 1391(a). Therefore, defendant's motion
to dismiss for improper venue is denied.
For the above reasons, the motion to dismiss pursuant to
Fed.R.Civ.P. 12(b) is denied in all respects.
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