medical care was administered by his doctor and physical
therapist in New Jersey.
Plaintiff's complaint alleges negligence and gross negligence
against all of the defendants. The defendants have filed
cross-claims against one another.*fn3 Century moved for
summary judgment on February 22, 2000. The motion was denied on
June 1, 2000. (See Docket No. 33.) Century then filed the
present motion on June 7, 2000.
A. Subject Matter Jurisdiction
Objections to a court's subject matter jurisdiction cannot be
waived and challenges can be made at any time. See
Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp.,
109 F.3d 105, 107 (2d Cir. 1997). Therefore, contrary to
plaintiffs insinuation, it is permissible for Century to bring
this motion at the close of discovery and after its motion for
summary judgment was unsuccessful.
"The district courts shall have original jurisdiction of all
civil actions where the matter in controversy exceeds the sum or
value of $75,000, exclusive of interest and costs, and is
between . . . citizens of different States."
28 U.S.C. § 1332(a)(1). "Diversity jurisdiction requires that `all of the
adverse parties in a suit . . . be completely diverse with
regard to citizenship.'" Handelsman v. Bedford Village Assocs.
Ltd. Partnership, 213 F.3d 48, 51 (2d Cir. 2000) (quoting E.R.
Squibb & Sons, Inc. v. Accident & Cas. Ins. Co., 160 F.3d 925,
930 (2d Cir. 1998)); see also Wisconsin Dep't of Corrections v.
Schacht, 524 U.S. 381, 388, 118 S.Ct. 2047, 141 L.Ed.2d 364
(1998) (stating that "diversity . . . is complete . . . only if
there is no plaintiff and no defendant who are citizens of the
same State".) It must be proven by a preponderance of the
evidence that compete diversity of opposing parties existed at
the time the suit was commenced. See Connolly v. Spielman,
999 F. Supp. 270, 273 (N.D.N.Y. 1998); see also Freeport-McMoRan,
Inc. v. K N Energy, Inc., 498 U.S. 426, 429, 111 S.Ct. 858,
112 L.Ed.2d 951 (1991).
"For purposes of diversity jurisdiction, a party's citizenship
depends on his domicile. Domicile has been described as the
place where a person has `his true fixed home and principal
establishment, and to which, whenever he is absent, he has the
intention of returning.'" Linardos v. Fortuna, 157 F.3d 945,
948 (2d Cir. 1998) (citation omitted). It is possible to reside
at one place and be domiciled at another. See Mississippi Band
of Choctaw Indians v. Holyfield, 490 U.S. 30, 47,
109 S.Ct. 1597, 104 L.Ed.2d 29 (1989). In addition, "[a] party may have
multiple residences, but only one domicile." Connolly,
999 F. Supp. at 272; see also National Artists Management Co. v.
Weaving, 769 F. Supp. 1224, 1227 (S.D.N.Y. 1991). "[D]omicile is
established by physical presence in a place in connection With a
certain state of mind concerning one's intent to remain there."
Mississippi Band of Choctaw Indians, 490 U.S. at 48,
109 S.Ct. 1597.
Objective indicators of a party's intent regarding
domicile include current residence; voting
registration and voting practices; location of
personal and real property; location of brokerage and
bank accounts; membership in unions, fraternal
organizations, churches, clubs, and other
associations; place of employment or business;
driver's license and automobile registration; [and]
payment of taxes.
Connolly, 999 F. Supp. at 272-73 (citing 13B Charles Alan
Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice &
Procedure § 3612 (2d ed. 1984)). "No single factor is
dispositive." Id. at 273. Rather, the "totality of the
be examined. See National Artists Management Co., 769 F. Supp.
"[T]he party invoking federal jurisdiction bears the burden of
proving facts to establish that jurisdiction." Linardos, 157
F.3d at 947. Mere allegations of residency in a state cannot
establish citizenship. See Canedy v. Liberty Mut. Ins. Co.,
126 F.3d 100, 103 (2d Cir. 1997). The allegations must be
supported "with competent proof if a party opposing jurisdiction
properly challenges those allegations." Linardos, 157 F.3d at
947 (internal quotations omitted). "Where a party has
established a domicile . . . the burden for demonstrating that a
new domicile has been established lies with the person seeking
to establish the change." National Artists Management Co.,
769 F. Supp. at 1228. A party must not only prove residence in a new
domicile, but also "the intention to remain there." Linardos,
157 F.3d at 948.
B. The Plaintiff's Domicile is New York
All of the defendants except Century and Werner are domiciled
in Delaware. However, diversity must be complete. Therefore,
since Century and Werner have a New York domiciliary, Young
cannot also be domiciled in New York. The relevant time for
determining domicile is December 14, 1998, when the complaint
At the time the complaint was filed, Young maintained two
residences. Thus at certain times immediately prior to the
filing of the complaint, he maintained a physical presence in
both New York and New Jersey. As a result, it is necessary to
look at the various aforementioned indicators to determine
Prior to April 1998, Young's only residence was in New York,
and he did not maintain a physical presence in New Jersey.
Additionally, before purchasing the condominium in Tivoli,
plaintiff lived in Pomona, New York with his parents and
attended college in New York. Therefore, plaintiff must prove by
a preponderance of the evidence that he intended to change his
domicile from New York to New Jersey between April 1998 and
December 14, 1998.
Plaintiff states that he intended to permanently move to New
Jersey. However, it is not enough to express an intention to be
domiciled in a state. A party must prove this intention by using
objective indicators. Young owned his home in New York, and he
rented an apartment in New Jersey. While owning vacation homes
is quite common in today's society, ownership of real property
is still a factor which should be considered in determining
domicile. Further, Young was registered to vote in New York and
had been an active voter in four elections between 1992 and
1998, including the November 4, 1997 election. In addition,
plaintiff held a New York State driver's license and his car was
registered in New York. Additionally, not only did plaintiff
give his New York address to the hospital in Albany, New York
immediately after the accident, he gave the same New York
address to a hospital in Morristown, New Jersey a month and a
half after the initial injury. Plaintiff even listed the New
York state address on his 1998 tax returns when he rented the
apartment in New Jersey for the majority of that year.
Plaintiff had taxes withheld in both New York and New Jersey
and maintained a phone in both locations. Therefore, neither of
these indicators influence the determination of domicile.
Plaintiff worked and spent the majority of his time in New
Jersey. However, the test for domicile is not where a person
spends the majority of his time. Instead, domicile concerns a
state of mind to remain or return to a certain place. While
plaintiff did spend a majority of his time in New Jersey, this
directly correlates with working in New Jersey. Plaintiff spent
the work week at his apartment in New Jersey and then returned
to his condominium in New York on weekends. Plaintiffs personal
property was split between these residences with a majority at
his apartment in New Jersey. The location of
personal property is another indicator of intent, however, since
plaintiff had personal property at both locations, this only
weights lightly in favor of domicile in New Jersey. Plaintiff
also states his doctors and physical therapist are located in
New Jersey. However, since most doctors and therapists only work
on weekdays, it is reasonable to believe that the plaintiff had
to seek treatment near his place of work. Thus, this factor also
weighs in favor of domicile in New Jersey. Finally, plaintiff
claims he currently is a member of a tennis club and video club
in New Jersey. However, plaintiff does not provide any evidence
that he was a member of these clubs at the time the complaint
Thus, aside from renting the apartment and working in New
Jersey, all other major factors point to the conclusion that
plaintiff maintained his domicile in New York. While place of
work is a strong indicator of domicile, plaintiff did not do any
of the things normally associated with setting up a new,
permanent residence. Young did not change his vehicle
registration or driver's license. He did not register to vote in
the area surrounding his apartment. He did not have all of his
mail forwarded to New Jersey. He used his New York address on
important records. Thus, the objective indicators used to
measure intent show Young was domiciled in New York. Since Young
has not met his burden of showing an intent to change domiciles
from New York to New Jersey, plaintiff is a New York
domiciliary, and therefore, diversity jurisdiction is lacking in
C. Century and Werner are not Necessary Parties
Plaintiff requests that rather than dismissing this entire
action, Century be dismissed from the suit so as to maintain
diversity jurisdiction. A district court may dismiss a
dispensable nondiverse party from a suit to maintain diversity
jurisdiction. See Newman-Green, Inc. v. Alfonzo-Larrain,
490 U.S. 826, 827, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989); see
also Fed.R.Civ.P. 21. However, the dismissed party cannot
qualify as indispensable under Fed.R.Civ.P. 19.
As a threshold matter, it must be determined whether "a party
is necessary under Rule 19(a), and joinder of the absent party
is not feasible for jurisdictional or other reasons." Viacom
Int'l, Inc. v. Kearney, 212 F.3d 721, 725 (2d Cir. 2000). A
party is considered "necessary"
[I]f (1) in the person's absence complete relief
cannot be accorded among those already parties, or
(2) the person claims an interest relating to the
subject of the action and is so situated that the
disposition of the action in the person's absence may
(i) as a practical matter impair or impede the
person's ability to protect that interest or (ii)
leave any of the persons already parties subject to a
substantial risk of incurring double, multiple, or
otherwise inconsistent obligations by reason of the
Fed.R.Civ.P. 19(a). It is well settled that joint tort-feasors
are not necessary parties. See Temple v. Synthes Corp.,
498 U.S. 5, 7, 111 S.Ct. 315, 112 L.Ed.2d 263 (1990) (stating that
"it is not necessary for all joint tortfeasors to be named as
defendants in a single lawsuit.") see also Mann v. Meachem,
929 F. Supp. 622, 629 (N.D.N.Y. 1996).
If it is determined that a party is necessary to the action,
the court must then decide whether that party is indispensable.
See Viacom Int'l, Inc., 212 F.3d at 725. "If the court
determines that a party is indispensable, then the court must
dismiss the action pursuant to Rule 19(b)." Id. However, as
noted above, since Century and Werner, as potential joint
tort-feasors, are not necessary parties and do not meet the
threshold requirements of Fed.R.Civ.P. 19(a), an inquiry as to
whether they are indispensable parties under Fed.R.Civ.P. 19(b)
is not required. See Temple, 498 U.S. at 8, 111 S.Ct. 315.
Therefore, Century and Werner may be dismissed in order to
maintain diversity jurisdiction
over this matter without dismissing the entire action. Further,
the complaint against the defendants who have not been in
existence since 1986 will be dismissed sua sponte.
Accordingly, it is
1. Defendant Century House Historical Society's motion is
2. The complaint and cross claims against it and defendant
Dietrich Werner are DISMISSED without prejudice;
3. The complaint is DISMISSED against defendants Iron Mountain
Group, Inc., Iron Mountain Security Corporation, and Iron
Mountain Security Storage Corporation; and
4. The action shall proceed against the remaining defendants.
IT IS SO ORDERED.