Hicks v. Brophy, Civ. No. 3:93-1595 (JAC).

• Decision Date: 14 December 1993
• Docket Number: Civ. No. 3:93-1595 (JAC).
• Citation: 839 F. Supp. 948
• Court: U.S. District Court — District of Connecticut
• Parties: John V. HICKS and Kathleen R. Hicks v. David BROPHY, Irene S. Brophy, the Devoe Realty Company, Marcel LeRoi d/b/a Northeast Building Inspection Service, Thomas O'Lasky and Town of Bridgewater, Connecticut.

839 F. Supp. 948

John V. HICKS and Kathleen R. Hicks v. David BROPHY, Irene S. Brophy, the Devoe Realty Company, Marcel LeRoi d/b/a Northeast Building Inspection Service, Thomas O'Lasky and Town of Bridgewater, Connecticut.

Civ. No. 3:93-1595 (JAC).

United States District Court, D. Connecticut.

December 14, 1993.

Justine R. Tobis, Michelson, Kane, Royster & Barger, P.C., Hartford, CT, for plaintiffs.

John T. Shearman, Shearman & Waters, P.C., Danbury, CT, for defendants David Brophy and Irene S. Brophy.

Richard R. Burmeister, Law Offices of George J. DuBorg, Wethersfield, CT, for defendant Devoe Realty Co.

Marcel LeRoi, pro se.

James G. Williams, Cella, McKeon & Williams, North Haven, CT, for defendants Town of Bridgewater, Connecticut and Thomas O'Lasky.

RULING ON DEFENDANTS' MOTIONS TO DISMISS

JOSÉ A. CABRANES, Chief Judge:

This action is based on the diversity of citizenship of the parties, pursuant to 28 U.S.C. § 1332. Pending before the court are the motions to dismiss of the defendant Devoe Realty Company (filed Sept. 24, 1993) and the defendants Town of Bridgewater and Thomas O'Lasky (filed Oct. 5, 1993).

BACKGROUND

The plaintiffs' allegations in this action — which was commenced on August 12, 1993 — are based on common law contract and tort claims, as well as the Connecticut Unfair Trade Practices Act, Conn.Gen.Stat. § 42-110a et seq. ("CUTPA"), and stem from the purchase of certain real property in Bridgewater, Connecticut ("Bridgewater property").

In Count 1, the plaintiffs allege that the defendants David H. Brophy and Irene S. Brophy breached the contract of sale regarding the Bridgewater property. In Count 2, the plaintiffs further allege that these defendants misrepresented that the Bridgewater property was in compliance with all applicable rules and regulations. Furthermore, in Count 3, the plaintiffs allege that these defendants fraudulently induced them into purchasing the Bridgewater property.

Count 4 alleges that Marcel LeRoi, doing business as Northeast Building Inspection Service, was negligent in inspecting the Bridgewater property. Count 5 further alleges that the Devoe Realty Company misrepresented that Bridgewater property was in excellent condition with no substantial defects when in fact the property was not legally inhabitable. In Count 6, the plaintiffs allege that Devoe Realty Company and Marcel LeRoi fraudulently induced them into purchasing the Bridgewater property.

In Count 7, the plaintiff asserts a negligence claim against Thomas O'Lasky, a building inspector employed by the Town of Bridgewater, Connecticut, while Count 8 sets forth a fraudulent concealment claim against the defendant O'Lasky. Pursuant to Conn. Gen.Stat. § 7-465 and § 52-557n, Count 9 alleges that the Town of Bridgewater is liable for the negligent acts of its employee, the defendant O'Lasky. Finally, Count 10 sets forth a CUTPA claim against the Devoe Realty Company and Marcel LeRoi.

More importantly for the purposes of the defendants' motions to dismiss, the complaint alleges that — while the various defendants in this action are citizens of South Carolina and Connecticut — the plaintiffs are citizens of the state of New York.

The defendants, on the other hand, have moved to dismiss this action for lack of subject matter jurisdiction, pursuant to Fed. R.Civ.P. 12(b)(1), due to a lack of complete diversity. More specifically, the defendants contend that the plaintiffs are in fact citizens of Connecticut, and that, as a result, this action cannot be maintained in federal court. According to the defendants, the plaintiffs' principal residence is in New Milford, Connecticut; the plaintiffs own two properties in Connecticut; they are registered voters in the Town of Milford; they own an automobile registered in Connecticut; the plaintiff Kathleen Hicks holds a current Connecticut motor vehicle license; and the plaintiffs maintain an active bank account with the New Milford Bank and Trust.

The plaintiffs respond by arguing that they are indeed residents of New York. According to the plaintiffs, they have maintained their principal residence in New York City for the last nine years, without interruption; their self-owned business is located and primarily conducted in New York City; they spend approximately 60 percent of their time there; they receive all of their personal and business mail, including bills, there; and they receive their medical care and accounting services there. The plaintiffs further maintain that they have used their property in New Milford, Connecticut solely as a vacation home; that they have rented out this Connecticut house, under lease, since April 1993; and that they even placed the house on the market for sale in October 1992. The plaintiffs similarly represent that they intend to use their property in Bridgewater, Connecticut as a vacation home and plan to spend approximately 10 percent of their time there. Moreover, the plaintiffs contend that they conduct their business and primary personal banking outside of Connecticut, and that they maintain a banking account in this state only for purposes of convenience. Finally, the plaintiffs claim that they have voted only once in Connecticut, again for convenience, in the 1992 national elections.

DISCUSSION

I.

The defendants' motions to dismiss turn on one simple yet disputed issue of fact: whether the plaintiffs are citizens of Connecticut or New York. Before addressing the merits of these motions, it should be emphasized that the court cannot resolve this factual dispute merely upon a facial reading of the complaint. This matter necessarily involves the examination of evidence underlying the jurisdictional elements of the pleadings. The court may therefore consider affidavits, deposition testimony, and other materials outside the complaint. See Antares Aircraft, L.P. v. Federal Republic of Nigeria, 948 F.2d 90, 96 (2d Cir.1991), vacated on other grounds, ___ U.S. ___, 112 S.Ct. 3020, 120 L.Ed.2d 892 (1992); see also EnsignBickford Co. v. ICI Explosives USA Inc., 817 F.Supp. 1018, 1023 (D.Conn.1993). The consideration of materials outside the complaint on a motion to dismiss pursuant to Rule 12(b)(1) does not convert the motion into one for summary judgment pursuant to Rule 56. 2A Moore's Federal Practice ¶ 12.-072.-1 (1993).

II.

Turning to the merits, it is well established that a federal court lacks diversity jurisdiction pursuant to 28 U.S.C. § 1332 if any plaintiff is a citizen of the same state as any defendant. See Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806); Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 373-74, 98 S.Ct. 2396, 2402-03, 57 L.Ed.2d 274 (1978); and Cresswell v. Sullivan & Cromwell, 922 F.2d 60, 68 (2d Cir. 1990). Accordingly, if the plaintiffs are citizens of Connecticut, this action must be dismissed. If, on the other hand, the plaintiffs are citizens of New York, the defendants' motions must fail.

For purposes of diversity jurisdiction, a person's citizenship is determined by domicile. It is a long-settled principle of law that while a person may have more than one residence, he may only have one domicile at any one time. Williamson v. Osenton, 232 U.S. 619, 34 S.Ct. 442, 58 L.Ed. 758 (1914); National Artists Management Co., Inc. v. Weaving, 769 F.Supp. 1224, 1227 (S.D.N.Y. 1991); Restatement (First) of Conflict of Laws § 11 (1934 & Supp.1948); Restatement (Second) of Conflict of Laws § 11 (1971 & Supp.1988); 13B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3612 (1984 & Supp.1993); 1 Moore's Federal Practice ¶ 0.743.2 (1991 & Supp.1993).

Domicile requires both (1) the party's physical presence in the state; and (2) the intent to remain in that state indefinitely. Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989); National Artists, 769 F.Supp. at 1227. The second element does not require that the persons have an affirmative intent to remain permanently in the state, but merely that he has no present intent to move to another state. National Artists, 769 F.Supp. at 1227.

Where, as here, there is evidence that the parties have more than one residence, or the residence is unclear, the court should focus on the intent of the parties. Id. (citing Brignoli v. Balch, Hardy & Scheinman, Inc., 696 F.Supp. 37, 41 (S.D.N.Y.1988)). "To ascertain intent, a court must `examine the entire course of a person's conduct in order to draw the necessary inferences as to the relevant intent.'" Id. (quoting Brignoli, 696 F.Supp. at 41). "In ascertaining intent of the party, that party's entire course of conduct may be taken into account. The party's own statements concerning his intentions are relevant, but they are of slight weight when they come into conflict with other facts that tend to disclose a contrary intent." Id. at 1227-28 (quoting Bevilaqua v. Bernstein, 642 F.Supp. 1072, 1074 (S.D.N.Y. 1986)).

In sum, the court uses a "totality of the evidence" approach, and no single factor is conclusive. Id. at 1228. Of course, pertinent factors include the place where civil and political rights are exercised, taxes paid, real and personal property (such as automobiles) located, driver's and other licenses obtained, bank accounts maintained, and places of business or employment. Id.; 1 Moore's Federal Practice ¶ 0.743.3 (1991 & Supp.1993). Other factors are also relevant, such as whether the person owns or rents his place of residence, how permanent the residence appears, and the location of a person's physician, lawyer, accountant, dentist, stockbroker, etc. National Artists, 769 F.Supp. at 1228 (citing Brignoli, 696 F.Supp. at 41; and Willis v. Westin Hotel Co., 651 F.Supp. 598, 600 (S.D.N.Y.1986)).

Whether diversity exists is determined as of the time the action is commenced. Freeport-McMoRan v. K N Energy, Inc., 498 U.S. 426, 426-29, 111 S.Ct. 858, 859-60, 112 L.Ed.2d 951 (1991); ...