Hamilton v. Accu-Tek, No. 95 CV 0049(JBW).

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Writing for the CourtWeinstein
Citation13 F.Supp.2d 366
PartiesFreddie HAMILTON, Administratrix, et al., Plaintiffs, v. ACCU-TEK, et al., Defendants.
Decision Date13 July 1998
Docket NumberNo. 95 CV 0049(JBW).
13 F.Supp.2d 366
Freddie HAMILTON, Administratrix, et al., Plaintiffs,
ACCU-TEK, et al., Defendants.
No. 95 CV 0049(JBW).
United States District Court, E.D. New York.
July 13, 1998.

Page 367

Elisa Barnes, New York City, for plaintiffs.

John F. Renzulli, Renzulli, Gainey & Rutherford, New York City, for defendants Accutek, A.M.T.; Browning Arms Co.; Davis Industries, Inc.; European American Armory; Freedom Arms Co.; Glock Inc.; H & R 1871 Inc.; K.B.I. Inc.; Mitchell Arms; Navegar (d/b/a Intratec); Olympic Arms; Para-Ordnance Mfg.; Springfield Inc.; Thompson/Center Arms.

Robert L. Joyce, Wilson, Elser, Moskowitz, Edelman & Dicker, New York City, for defendants Sigarms, Inc.

Anne Giddings Kimball, James P. Dorr, Wildman, Harrold, Allen & Dixon, Chicago, IL, for defendants Colt Manufacturing Co., Inc.; Smith and Wesson Corp.; Sturm, Ruger & Company, Inc.

Daniel T. Hughes, Morgan, Melhuish, Monaghan, Arvidson, Abrutyn & Lisowski, New York City, for defendant American Arms.

Peter Johnson, Leahey & Johnson, New York City, for defendants Century International Arms.

Timothy A. Bumann, Cozen and O'Connor, Atlanta, GA, for defendants American Derringer Corp.; Bryco Arms; Calico Weapon Systems, Inc.; Excam Inc.; Firearms Import and Export Corp.; Jennings Firearms Inc.; Lorcin Engineering; Phoenix Arms, Inc.; Taurus International Firearms Inc.; Sundance Industries.

Lawrence G. Keane, Pino & Associates, White Plains, New York City, for defendant Beretta U.S.A. Corp.

Timothy Atwood, Ansonia, CT, for defendants Charco Charter Arms; L.W. Seecamp Co., Inc.; International Armament Corp. (d/b/a/ Interarms).

David Gross, Budd, Larner, Gross, Rosenbaum, Greenberg & Sade, Short Hills, NJ, for defendants AcuSport Corp.; Alamo Leather Godds, Inc.; Banger, L.P.; Brazas Sporting Arms, Inc.; Chattanooga Shooting Supplies, Inc.; Davidson Supply Co., Inc.; Eagle Exim, Inc.; Fox Wholesale, Inc.; Graf & Sons; Gunarama Wholesale, Inc.; Hill Country Wholesale, Inc.; Lipsey's, Inc.; Kiesler Police Supply; Micro Sight Company; Nationwide Sports Distributors; Point Sporting Goods; RSR Wholesale South, Inc.; Schaub Distributors; Scott Wholesale Co., Inc.; SG Distributing/Andrews Sporting Goods; Southern Ohio Gun Distributors, Inc.; Sports South, Inc.

E. Gordon Haesloop, Bartlett, McDonough, Bastone & Monoghan, Mineola, NY, for defendant Ellett Bros., Inc.

Luigi Spadafora, Winget & Spadafora, New York City.


WEINSTEIN, District Judge.

I. Introduction

Whether this court has diversity jurisdiction over a mother's suit against gun manufacturers

Page 368

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 Rules 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 fiancé, 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 fiancé 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 purchased while in Virginia, he declared that his home address was in Virginia.

A fellow student at Norfolk had alleged that Malachi had impregnated her. Malachi denied the allegation. He had no subsequent contact with the woman nor the baby that she bore. Malachi's mother did maintain contact with the child, who is living in Virginia with her maternal grandmother. The child's mother left Virginia after giving birth.

There is some familial connection of Mrs. Costa and Malachi to...

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14 cases
  • Hamilton v. Accu-Tek, CV-95-0049 (JBW).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • June 3, 1999
    ...47 (E.D.N.Y.1998). A motion to dismiss or transfer one case on the ground of lack of diversity was denied. See Hamilton v. Accu-Tek, 13 F.Supp.2d 366 At the close of discovery, defendants renewed their motion for summary judgment. It was denied. See Hamilton v. Accu-Tek, 1998 WL 903473 (E.D......
  • Hamilton v. Accu-Tek, CV-95-0049 (JBW).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • January 22, 1999
    ...He was twenty-three years old. Malachi was a New York domiciliary planning to return to New York to live. See Hamilton v. Accu-Tek, 13 F.Supp.2d 366 (E.D.N.Y. 1998). At the time of his murder, he had resided in Virginia as both college student and house painter for four The Portsmouth polic......
  • Torrico v. International Business Machines Corp., 01 Civ. 841(GEL).
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    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
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    ...fixed home and principal establishment, and to which, whenever he is absent, he has the intention of returning."); Hamilton v. Accu-Tek, 13 F.Supp.2d 366, 369 (E.D.N.Y.1998) ("Domicile is established by residence in fact, coupled with the intent to make the place of residence one's home." (......
  • McMillan-McCartney v. McMillan, Civil Case No.: SAG-18-3331
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
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    ...is in question are given heavy ... weight." Thomas v. Farmer, 148 F. Supp. 2d 593, 596 (D. Md. 2001) (quoting Hamilton v. Accu-Trek, 13 F. Supp. 2d 366, 370 (E.D.N.Y. 1998) (internal quotation marks omitted). When statements of intention are "in conflict with the facts," however, they are "......
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