Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Reich v. Lopez

United States District Court, S.D. New York

April 30, 2015

THE HONORABLE OTTO J. REICH and OTTO REICH ASSOCIATES, LLC, Plaintiffs,
v.
LEOPOLDO ALEJANDRO BETANCOURT LOPEZ, PEDRO JOSE TREBBAU LOPEZ, and FRANCISCO D'AGOSTINO CASADO, Defendants.

OPINION AND ORDER

J. PAUL OETKEN, District Judge.

In an opinion and order dated August 18, 2014, the Court allowed jurisdictional discovery to determine the domicile of Leopoldo Alejandro Betancourt Lopez ("Betancourt") and Pedro Jose Trebbau Lopez ("Trebbau"). See Reich v. Lopez, 38 F.Supp. 3d 436, 459 (S.D.N.Y. 2014) (Oetken, J.).[1] Jurisdictional discovery is now complete. Betancourt and Trebbau have renewed their motions to dismiss Plaintiffs' claims against them under Federal Rule of Civil Procedure 12(b)(2). For the reasons that follow, their motions are granted.[2]

I. Discussion

Betancourt and Trebbau move to dismiss the Complaint on the ground that the Court lacks personal jurisdiction over them. In response, Plaintiffs principally argue that Betancourt and Trebbau are New York domiciliaries and, therefore, are subject to general jurisdiction in New York. Next, Plaintiffs raise several other arguments, many of which the Court already rejected in its August 18 opinion. To the extent that the Court has already rejected the arguments pressed by Plaintiffs here, the Court will treat those arguments as a motion to reconsider the earlier opinion.

A. Legal Standard

"Personal jurisdiction of a federal court over a non-resident defendant is governed by the law of the state in which the court sits-subject, of course, to certain constitutional limitations of due process." Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994); see also Distefano v. Carozzi N. Am., Inc., 286 F.3d 81, 84 (2d Cir. 2001) (per curiam). Accordingly, the Court must engage in a "two-part analysis." Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d 779, 784 (2d Cir. 1999). First, the Court must look to the relevant jurisdictional statute of the state in which it sits: New York. Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 208 (2d Cir. 2001) (quoting Bensusan Rest. Corp. v. King, 126 F.3d 25, 27 (2d Cir. 1997)). Then, "[i]f the exercise of jurisdiction is appropriate under that statute, the [C]ourt must decide whether such exercise comports with the requisites of due process." Id.

Plaintiffs have the burden of showing personal jurisdiction over Defendants. Grand River Enters. Six Nations, Ltd. v. Pryor, 425 F.3d 158, 165 (2d Cir. 2005). To survive a motion to dismiss under Rule 12(b)(2), a plaintiff need only make a "prima facie showing" of jurisdiction. Jazini v. Nissan Motor Co., Ltd., 148 F.3d 181, 184 (2d Cir. 1998). But where, as here, "the parties have conducted extensive discovery regarding the defendant's contacts with the forum state, but no evidentiary hearing has been held[, ] the plaintiff's prima facie showing... must include an averment of facts that, if credited by the ultimate trier of fact, would suffice to establish jurisdiction over the defendant." Bank Brussels Lambert, 171 F.3d at 784 (brackets and internal quotation marks omitted). Questions of personal jurisdiction are fact intensive. E.g., PDK Labs, Inc. v. Friedlander, 103 F.3d 1105, 1108 (2d Cir. 1997). And because the Court has not held an evidentiary hearing, "the pleadings and any supporting affidavits are to be interpreted in the light most favorable to the plaintiff." Rubinbaum LLP v. Related Corporate Partners V, L.P., 154 F.Supp.2d 481, 486 (S.D.N.Y. 2001).

The parties agree that if Betancourt and Trebbau are New York domiciliaries, the Court's exercise of personal jurisdiction would be consistent with New York law and the due process clause. Thus, the first question is whether Plaintiffs have made a prima facie showing that Betancourt and Trebbau are New York domiciliaries. The second question is whether, assuming Betancourt and Trebbau are not New York domiciliaries, this Court's jurisdiction is consistent with New York law and the due process clause.

B. Domicile

Domicile is the "technically pre-eminent headquarters that every person is compelled to have in order that by aid of it, certain rights and duties which have attached to it by the law may be determined." In re Thorne, 148 N.E. 630, 632 (N.Y. 1925). A person has exactly one domicile at all times from his birth to his death. Crawford v. Wilson, 4 Barb. 504 (N.Y. Gen. Term 1848). At birth, he has the domicile of his custodial parent. E.g., In re Webber's Will, 64 N.Y.S.2d 281, 283 (N.Y. Sur. Ct. 1946). He keeps this domicile until, by choice or operation of law, he acquires another. Ennis v. Smith, 55 U.S. (14 How.) 400, 422-23 (1853). To acquire a domicile by choice, the law requires physical presence in the domicile state coincident with the intent to make that state one's home-at least for a period of time. In re Newcomb's Estate, 84 N.E. 950, 954 (N.Y. 1908). The parties do not dispute that Betancourt and Trebbau have been physically present in New York. So the only question is intent.

Self-serving statements of intent do not alone suffice to prove domicile. Rather, in this context, actions consistent with the intent to make a place one's home speak louder than words alone. See, e.g., In re Griswold's Trust, 99 N.Y.S.2d 420, 425 (N.Y. Sup. 1950) ("The judiciary has tended to disregard declarations when they are in conflict with conduct." (citing, inter alia, Newcomb's Estate, 84 N.E. at 955)). Intent can be inferred from a wide range of facts, and, as such, the totality of the circumstances surrounding a person's residences is relevant to the question. See, e.g., In re Will of Meyer, 876 N.Y.S.2d 7, 12 (App. Div. 1st Dep't 2009) ("Intent is determined by the conduct of the person and all the surrounding circumstances..."); see also Morrison v. Blitz, No. 88 CIV. 5607 (MBM), 1996 WL 403034, at *1 (S.D.N.Y. July 18, 1996) (holding that courts should consider factors "including, but not limited to, the place of [a person's] family ties, voter registration, tax liability, driver's license and vehicle registration, business activities, bank accounts, social activities and religious affiliations.").

Although a person can have only one domicile at a time, many people live-in one sense of that word or another-in more than one place. See Black v. Black, 968 N.Y.S.2d 722, 723 (A.D.3d Dep't 2013). "An existing domicile, whether of origin or selection, continues until a new one is acquired, and a party... alleging a change in domicile has the burden to prove the change by clear and convincing evidence." Hosley v. Curry, 649 N.E.2d 1176, 1178 (N.Y. 1995).

Betancourt and Trebbau were Venezuelan domiciliaries at birth[3] and they both aver that Venezuela is where they intend their current homes to be. Plaintiffs, then, have the burden to show by clear and convincing evidence that Betancourt and Trebbau intended to make their New York residences their preeminent headquarters. Despite the opportunity to conduct fairly extensive jurisdictional discovery, and even with all factual disputes resolved in ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.