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CLYDE v. LUDWIG HARDWARE STORE

February 19, 1993

ARTHUR CLYDE IV, an infant by his father and natural guardian, ARTHUR CLYDE III, and ARTHUR CLYDE III, individually, Plaintiffs,
v.
LUDWIG HARDWARE STORE, INC. and MERRICK FRADKIN, Defendants.


MARTIN, JR.


The opinion of the court was delivered by: JOHN S. MARTIN, JR.

JOHN S. MARTIN, JR., District Judge:

 Defendant Merrick Fradkin moves to dismiss for lack of subject matter jurisdiction, lack of personal jurisdiction and improper venue.

 Background

 This personal injury case arises out of an incident in which defendant Merrick Fradkin's ("Fradkin") dog allegedly bit plaintiff Arthur Clyde IV ("Clyde IV"), a three-year old boy, while Clyde IV was with his mother in a hardware store in New Jersey in which Fradkin was employed and which was owned by defendant Ludwig's Hardware Store, Inc. ("Ludwig, Inc."). Clyde IV was taken to a New Jersey hospital where he received extensive medical treatment.

 Clyde IV's father, plaintiff Arthur Clyde III ("Clyde III") is suing on behalf of his son for $ 2 million for damages sustained and individually for $ 200,000 for loss of services and medical costs.

 The only evidence before this Court regarding the citizenships of the plaintiffs are depositions of Clyde III, Clyde IV, *fn1" and Mary Clare Ditton ("Ditton"), Clyde III's ex-wife and mother of Clyde IV.

 Clyde III testified at his deposition that he maintained a residence at 209 East 61st St. in New York City and owned and operated an exercise studio in New York City around the corner from his apartment. He testified that although the studio was open from 7:00 a.m. to 9:00 p.m., he was not always present during those times. Clyde III also indicated that he maintained another residence at 84 Bedford Avenue in Teaneck, N.J. at his father's house ("84 Bedford"). According to his testimony, he visited his father two to three times a week, and slept there "sometimes."

 It is undisputed that defendants Ludwig, Inc. and Fradkin are citizens of New Jersey.

 Discussion

 Subject matter jurisdiction in this case is based on diversity jurisdiction. Whether complete diversity between the parties exists will depend on where the parties are domiciled.

 Although Clyde III apparently maintains two separate residences, one in New York and one in New Jersey, he may have only one domicile by definition. Williamson v. Osenton, 232 U.S. 619, 58 L. Ed. 758, 34 S. Ct. 442 (1914); National Artists Management Co. v. Weaving, 769 F. Supp. 1224, 1227 (S.D.N.Y. 1991). For a state to be a person's domicile requires physical presence in the state and an intention to remain there indefinitely. Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48, 104 L. Ed. 2d 29, 109 S. Ct. 1597 (1989). There is no question that Clyde III is a domiciliary of New York. He maintains an apartment in New York and works in New York, while his residence in New Jersey is due only to his father's residing there, a temporary condition which is subject to change. Since Clyde III is a domiciliary of New York while defendants are domiciled in New Jersey, diversity exists between them.

 A far more interesting question is whether diversity exists between defendants and Clyde IV. It is Clyde IV's domicile, not that of his father suing on his behalf, which is determinative of diversity jurisdiction. Dunlap v. Buchanan, 741 F.2d 165, 167 (8th Cir. 1984). "The domicile of a minor is generally determined by reference to another person because minors are legally incapable of forming the requisite intent to regard a place as home . . ." Id.; see Holyfield, 490 U.S. at 48. Historically, an infant took the domicile of its father. Yarborough v. Yarborough, 290 U.S. 202, 211, 78 L. Ed. 269, 54 S. Ct. 181 (1933); Kaiser v. Loomis, 391 F.2d 1007, 1009 (6th Cir. 1968); Safeco Ins. Co. of Am. v. Mirczak, 662 F. Supp. 1155, 1157 (D. Nev. 1987); De Wit v. KLM Royal Dutch Airlines, N.V., 570 F. Supp. 613, 616 (S.D.N.Y. 1983); 1 Moore, Fed. Prac. 800.6 (1992); 13B Wright, Miller & Cooper, Fed. Prac. & Proc. 559 (1992). However, where custody passed ...


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