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HAMILTON v. ACCU-TEK

July 13, 1998

FREDDIE HAMILTON, Administratrix, et al., Plaintiffs, against ACCU-TEK, et al., Defendants.


The opinion of the court was delivered by: WEINSTEIN

MEMORANDUM and ORDER

 Weinstein, J.:

 I. Introduction

 Whether this court has diversity jurisdiction over a mother's suit against gun manufacturers for her son's death by gunshot depends upon whether her son changed his domicile from his mother's in New York to his own in Virginia.

 By birth, children are forever tied to their parents. See, e.g., Eph. 6:3 (Revised Standard Version) ("Honor your mother and father that it may be well with you and that you may live long on the earth."). Financial, legal, and other ties do, however, lessen with time. Here, as the facts demonstrate, the filial domiciliary bonds still remain joined in New York, providing diversity jurisdiction over a Virginia corporation.

 II. Procedure

 Various gun manufacturers move, pursuant to Federal Rule of Civil Procedure 12(b)(1), to dismiss the claim of plaintiff Veronica Costa, mother of decedent Christopher Malachi, for lack of subject matter jurisdiction. Mrs. Costa, for purposes of this case, assumes the domicile of her deceased son, of whose estate she is executrix.

 Defendants argue that Malachi was a domiciliary of Virginia at the time of his death. It is undisputed that at least one defendant was a corporate citizen of Virginia. If defendants' contention is correct, subject matter jurisdiction with respect to Mrs. Costa, based on complete diversity, is lacking. 28 U.S.C. § 1332(a). The evidence belies their contention.

 III. Facts

 Decedent, Christopher Malachi, was born on February 5, 1971 in New York City. There he attended nursery through high school. In the spring of 1990, he matriculated at Norfolk State University in Norfolk, Virginia. He was charged tuition as an out-of-state resident, which is higher than that for Virginia residents. His mother paid his tuition and rent and sent him spending money regularly from New York. According to his college transcript, he attended through the fall of 1992. His mother was aware that he had taken some time off from college, but it was her understanding that he had re-enrolled or would shortly do so.

 Malachi was shot to death on April 19, 1994 at the age of 23. His mother brought suit against the defendant gun manufacturers and distributors.

 In the approximately one to two years before his death, Malachi was residing in the state of Virginia while working as a house painter. His mother testified that, though his earnings were good, he had told her that he intended to finish college and become an architectural drafter.

 The mother testified that Malachi expressed the intent to return to New York City with his fiance, Tamara Rooney. Rooney resided in Maryland. Malachi spent some holidays with her and her family in Maryland, and he spent some holidays in New York with his family. His mother stated that he came home for the summers. He and his fiance had been looking at apartments in New York City--obviously for their future joint use. Mrs. Costa noted that her son had never expressed to her an intention to either remain in Virginia or move to any state other than New York.

 While Malachi had not filed tax returns in Virginia, he had obtained a driver's license and identification card from the Virginia Department of Motor Vehicles. On the identification card application, he indicated that he was a resident of Virginia. On the purchase and registration statements for a car that he ...


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