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October 12, 2005.


The opinion of the court was delivered by: RICHARD HOLWELL, District Judge


Plaintiff Jurgen Peter Aldinger brings this action against his former wife, defendant Kedra Adele Segler. The Complaint alleges a cause of action in tort arising from Defendant's alleged interference with Plaintiff's custody and visitation rights of the parties' three children. Subject matter jurisdiction is alleged to be based on diversity of citizenship, 28 U.S.C. 1332(a)(2), in that plaintiff is domiciled in Germany and defendant is alleged to be domiciled in New York while residing in Germany. See Complaint ¶¶ 1-2. Defendant has now moved to dismiss the complaint against her based on the lack of personal jurisdiction, lack of subject matter jurisdiction, and forum non conveniens. Following discovery on jurisdictional issues, an evidentiary hearing was held on September 21, 2005. On September 26, 2005, the Court issued an order granting defendant's motion to dismiss based on the lack of personal jurisdiction. This opinion sets forth the bases for the Court's decision.


  The facts of this case are as follows. Ms. Segler, a United States citizen and member of the U.S. Army, and Mr. Aldinger, a German citizen, were married in Markt Schwaben, Germany on December 5, 1997. (German Court Order on Dissolution of Marriage, July 16, 2004 (Exhibit 9 to Defendant's Supplemental Submission dated April 6, 2005), p. 2. ("German Court Order").) Their marriage produced three children: Maximilian, born on July 21, 1999 in Wiesbaden, Germany; Alexandria, born on September 1, 2000 in Munich, Germany; and Pascal, born on October 6, 2001 in Heidelberg, Germany. (Id.; Transcript, September 21, 2005 evidentiary hearing ("Tr.") p. 23-24.) Ms. Segler left the U.S. Army in September 2000, six days following the birth of the parties' second child. (Tr. 24; Fourth Certification of Defendant Kedra A. Segler in Lieu of Oath or Affidavit, ¶ 9.) In November 2000 the couple jointly purchased a home in Markt Schwaben, Germany (Tr. 26), and lived there with the children until they were separated in May 2001. (Tr. 8.) Following reconciliation, the parties began living together again at the same home in Markt Schwaben in December 2001. (Tr. 25-26, 28.)

  In July 2002, Ms. Segler, without Mr. Aldinger's consent, departed from Germany with their three children, ending their journey at the home of Ms. Segler's sister in Puerto Rico. (Tr. 9-10, 47-49; Complaint ¶¶ 13-15.) It appears that Ms. Segler intended to settle in Puerto Rico, enrolling the children in school and finding employment as a teacher. (Tr. 10, 23, 48.) Seeking the return of the children, Mr. Aldinger filed an action in the United States District Court for the District of Puerto Rico on November 1, 2002, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction of October 25, 1980, implemented by the International Child Abduction Remedies Act (42 U.S.C. §§ 11601 et seq.). On April 29, 2003, the district court granted Mr. Aldinger's petition, and ordered the children returned to Germany. See Aldinger v. Segler, 263 F.Supp.2d 284 (D. Puerto Rico 2003). Ms. Segler accompanied the children back to Germany in mid-May 2003, having begun the process of rejoining the military in Puerto Rico, and she was "sworn into office" as a member of the U.S. Army in Bad Aibling, Germany, in June 2003. (Tr. 13-15; Affidavit of Kiera A. Segler, ¶ 10.) After a period of training in San Antonio, Texas in the fall of 2003, she was apparently stationed in Landstuhl, Germany in November 2003, working at Landstuhl Regional Medical Center, where she has remained until the present.*fn1 (Fourth Cert. of Kedra Segler, ¶¶ 11-12; Sixth Cert. of Kedra Segler, ¶ 2g).

  Mr. Aldinger filed the instant action on June 10, 2004, seeking civil damages in connection with the 2002 abduction and Ms. Segler's alleged ongoing interference with his ability to contract the children. Ms. Segler had filed for divorce from Mr. Aldinger on May 22, 2003, and a German court granted that request, as well as sole custody of the children, to Ms. Segler on July 16, 2004. (German Court Order, p. 2.) In September 2004, Mr. Aldinger was awarded attorney's fees and travel expenses in the amount of $16,971.75 in connection with his original action against Ms. Segler under the International Child Abduction Remedies Act. Aldinger v. Segler, 338 F.Supp.2d 296, 299 (D. Puerto Rico 2004).


  A. 12(b)(2) Standard

  The plaintiff "bears the burden of establishing that the court has jurisdiction over the defendant when served with a Rule 12(b)(2) motion to dismiss." Whitaker v. American Telecasting, Inc., 261 F.3d 196, 208 (2d Cir. 2001) (internal citations omitted). In situations such as in the instant case, "where the court holds an evidentiary hearing to resolve factual disputes, the plaintiff must establish jurisdiction by a preponderance of the evidence." Cavu Releasing, LLC. v. Fries, 2005 WL 1944269, at *2 (S.D.N.Y. 2005); see also Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 567 (2nd Cir. 1996).

  B. Personal Jurisdiction

  Where "a federal court's subject matter jurisdiction is based on diversity of citizenship, the court applies the law of the forum state to determine whether it has personal jurisdiction over a defendant." Paul Revere Life Ins. Co. v. Segal, 2000 WL 1448626, at * 1 (S.D.N.Y. 2000). A New York court obtains personal jurisdiction if the person is a domiciliary at the time of service. See N.Y.C.P.L.R. § 313 (McKinney's 2005); Cockrum v. Cockrum, 246 N.Y.S.2d 376, 378, 20 A.D.2d 642, 643 (2d Dep't 1964). The complaint in the present matter was filed on June 10, 2004, and Ms. Segler was personally served on July 7, 2004.*fn2 Though one may possess multiple residences, a person can only have one domicile, "and it has generally been held that the residence established earlier in time remains the individual's domicile until a clear intention to change is established." Laufer v. Hauge, 140 A.D.2d 671, 672-73, 528 N.Y.S.2d 878, 879 (New York App. Div. 1988).

  While Ms. Segler currently lives in Landstuhl, Germany (Sixth Cert. of Kedra Segler, ¶ 2g), she does not appear to dispute that she once was a domiciliary of New York, at the time of her first enlistment in the U.S. Army, in 1994. Her mother, Florence Segler, indicated during her testimony at the evidentiary hearing that Ms. Segler lived with her in New York prior to her enlistment (Tr. 39), and her affidavit noted that Ms. Segler used her mother's home address in New York at the time of her enlistment. (Florence Segler, Esq. Aff., ¶¶ 5-6.) Ms. Segler asserts, however, that her place of domicile had changed to Germany well before service in this action in July 2004. "The person alleging a change of domicile has the burden of proving it, [and] [t]o satisfy this burden, two things are indispensable: first, residence in a new domicile; and, second, the intention to remain there." Gutierrez v. Fox, 141 F.3d 425, 427-28 (2d Cir. 1998) (analyzing the law of domicile for purposes of establishing subject matter jurisdiction based on diversity); Bean v. Bean, 95 N.Y.S.2d 477, 490 (N.Y.Sup. 1950) (citing to same two elements).

  One's intent, as evidenced by "conduct and statements, is the critical element in determining whether there has been a change of domicile." Matter of Schwarzenberger, 215 A.D.2d 393, 394, 626 N.Y.S.2d 229, 230 (N.Y.App.Div. 1995). "The case law is replete with the ingredients of domicile which are born from intent [such as the purchase a home, mortgages, membership in local organizations, and voting practices]." Meehan v. Lomenzo, 63 Misc.2d 490, 493-94, 312 N.Y.S.2d 500, 504 (N.Y.Sup. 1970). In determining domicile for the purposes of subject matter jurisdiction on the basis of diversity of citizenship, federal courts may use "a totality of the evidence approach, [where] no single factor is conclusive." Weber v. Paduano, 2003 WL 22801777, at *6 (S.D.N.Y. 2003). Factors that may be useful in determining both physical presence and intent to remain in a location indefinitely can include "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; payment of taxes; as well as several others." See Charles Alan Wright, et al., Federal Practice and Procedure § 3612, at 530-31 (2d ed. 1984) (pointing to factors useful in determining diversity for purposes of subject matter jurisdiction).

  The record contains a wealth of uncontroverted evidence that, by the late 1990s, Ms. Segler lived in Germany and intended to remain there indefinitely, and Mr. Aldinger has pointed to no evidence that she has ever subsequently reestablished a New York domicile. Following an eleven-month stint in Heidelberg, Germany, in the mid-1990s and a brief return to Alabama and Arizona for training, she requested to be stationed in Wiesbaden, Germany in order to live with her then-fiance, Mr. Aldinger. (Fourth Cert. of Kedra Segler, ¶¶ 4-7.) The two were married in Germany in December 1997. (Tr. 6.) Ms. Segler states that she had the intention of making Germany her home for the indefinite future when she married Mr. Aldinger in 1997. (Fourth Cert. of Kedra Segler, ¶ 9.) Testimony at the evidentiary hearing and affidavits of two family members further attest to this intention on the part of Ms. Segler. (Tr. 45; Florence Segler, Esq. Aff., ¶ 11; Kiera A. Segler Aff., ¶ 8.) Indeed, plaintiff has not disputed that Ms. Segler possessed the intention to remain in Germany indefinitely when the parties were married, although he quibbles as to the meaning of the term "indefinite." (Supplemental Opposition to Motion to Dismiss, pg. 5-6.) Nor does he dispute that after she resigned from the service in September 2000, Ms. Segler purchased a home with her husband in Germany, where they intended to, and did in fact, live with their three children. (Tr. 27.) Though Mr. Aldinger has provided some evidence that Ms. Segler may have briefly considered a return to New York to work with her mother in the spring of 2002 (Tr. 34-36), such evidence is irrelevant. It ...

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