U.S.C. § 1985 and the Fourteenth Amendment and deny his Fed.R.Civ.P. 12(b)(6) motion to dismiss the claim based upon 42 U.S.C. § 1983; and, (6) dismiss Sua sponte, pursuant to Fed.R.Civ.P. 12(b)(6), the claims against Shaefer and Thomas Smith based upon 42 U.S.C. § 1985.
I. Fed.R.Civ.P. 12(b)(1)
In her complaint, Coggins alleges that she is a citizen and resident of the State of New York and that the defendants are all citizens and residents of either Pennsylvania or Delaware. She also alleges jurisdiction over these defendants with respect to her state law claims on the basis of diversity of citizenship, pursuant to 28 U.S.C. § 1332(a). Coggins does not invoke this Court's pendent jurisdiction.
In their Fed.R.Civ.P. 12(b)(1) motions to dismiss, Lamb, Wollman, Conroy, Murray and Carpenter argue that Coggins is, in fact, a citizen and resident of Pennsylvania and that, therefore, this Court lacks diversity jurisdiction to entertain Coggins' state law claims. However, none of these moving defendants has submitted any affidavits or other material to the Court other than legal memoranda to support their arguments. Coggins has responded to these particular allegations with a mere denial and, likewise, has submitted no material to this Court other than a brief reply memorandum.
It is well settled that there is a presumption against the existence of federal jurisdiction and that the party invoking the federal court's jurisdiction bears the burden of proof. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974). It is also well settled that there is a presumption in favor of an original or former domicile as opposed to an acquired one. Herzog v. Herzog, 333 F. Supp. 477, 478 (W.D.Pa.1971). On the face of the complaint, Coggins has overcome these presumptions by properly pleading subject matter jurisdiction based upon 28 U.S.C. § 1332(a). However, if a defendant properly challenges the plaintiff's jurisdictional allegations, the burden of proof is again upon the plaintiff to support those jurisdictional allegations by a preponderance of the evidence. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 56 S. Ct. 780, 80 L. Ed. 1135 (1936); Mas v. Perry, 489 F.2d 1396, 1399 (5th Cir.), Cert. denied, 419 U.S. 842, 95 S. Ct. 74, 42 L. Ed. 2d 70 (1974); Nelson v. Keefer, 451 F.2d 289, 296 (3d Cir. 1971). Furthermore, if the parties do not raise the issue of jurisdiction, it is the duty of the federal court to raise the issue Sua sponte. Basso v. Utah Power & Light Co., supra, 495 F.2d at 909; Fed.R.Civ.P. 12(h)(3). Whenever and however the factual issue of jurisdiction is raised, the federal court may evaluate for itself by means of affidavits, hearings, etc., whether or not subject matter jurisdiction does in fact exist. Cf. Mortensen v. First Fed. S & L Assoc., 549 F.2d 884 (3d Cir. 1977).
In this case, the Court is not sure that the defendants have "properly" challenged the jurisdictional allegations of Coggins' complaint. However, because the issue has been raised, it is incumbent upon this Court to assure itself of its jurisdiction over Coggins' state law claims pursuant to 28 U.S.C. § 1332(a). Because the Court was unable to determine that issue on the basis of the record before it, a hearing was held on the Fed.R.Civ.P. 12(b)(1) motions of Lamb, Wollman, Conroy, Murray and Carpenter at which all counsel of record in this case were requested to be present. As a result of the testimony and exhibits received at that hearing on the issue of Coggins' invocation of this Court's diversity jurisdiction, we hold that Coggins has not satisfied her burden of establishing by a preponderance of the evidence that she was a citizen of the State of New York at the time the complaint was filed.
For the purpose of determining a party's citizenship within the meaning of the general diversity statute, the Court must determine the party's "domicile" at the time the complaint was filed. Conolly v. Taylor, 27 U.S. 556, 2 Pet. 556, 7 L. Ed. 518 (1829); Brown v. Fennell, 155 F. Supp. 424 (E.D.Pa.1957). To establish domicile, a party must show that he is a resident of a particular state and that he has an intent to remain there for the indefinite future. Sun Printing & Publishing Ass'n v. Edwards, 194 U.S. 377, 24 S. Ct. 696, 48 L. Ed. 1027 (1904). In making the determination, the Court must consider the surrounding circumstances and must view all relevant factors. See Krasnov v. Dinan, 465 F.2d 1298, n. 2 (3d Cir. 1972).
Although there is a presumption in favor of a former domicile over a newly acquired one, a minimum period of residence is not needed, Milliken v. Tri-County Elec. Coop., Inc., 254 F. Supp. 302 (D.S.C.1966), and a party may establish a new domicile upon a showing of both a physical presence and an intention to remain in the new jurisdiction. Morris v. Gilmer, 129 U.S. 315, 9 S. Ct. 289, 32 L. Ed. 690 (1889); Paudler v. Paudler, 185 F.2d 901 (5th Cir.), Cert. denied, 341 U.S. 920, 71 S. Ct. 742, 95 L. Ed. 1354 (1950). See also Restatement 2d, Conflict of Laws § 16. In addition, a party's motive in attempting to acquire a new domicile is not directly relevant to the Court's determination of whether the new domicile has, in fact, been established. Williamson v. Osenton, 232 U.S. 619, 34 S. Ct. 442, 58 L. Ed. 758 (1914); Peterson v. Allaty Ins. Co., 472 F.2d 71 (2d Cir. 1972). With these principles in mind, the Court finds the following facts to be relevant and credible.
For many years, Coggins maintained a home in Chester County, Pennsylvania. For the period between 1967 and 1977, she resided at the Rob Roy Farm in Chester County, of which she was a one-quarter owner in common with other family members. Coggins maintained substantial personal possessions at Rob Roy Farm and it was primarily there that she engaged in her profession as a horse trainer and breeder. In July, 1976, Coggins was seriously injured allegedly as a result of the actions of the defendants and, by May of 1978, her physician informed her that she would not be able to ride horses again. At that time, Coggins determined to move out of the rural setting of Chester County so she would not be reminded daily of her inability to ride. Also at that time, Coggins' retained counsel advised her that, if she had plans to move out of Chester County anyway, it would be to her advantage to move to a different state before the period of limitations lapsed on certain of her claims on July 3, 1978.
During the month of June, 1978, Coggins spent two or three nights as a guest of a family friend, a Mr. Zappi, at his residence at 521 Park Avenue, New York City. Also during the month of June, Coggins attended two job interviews in New York City and opened a bank account. On June 27, 1978, Coggins signed a lease with Mrs. Elvira Markley for the rental of an apartment at 136 East 56th Street, New York City, but the lease was backdated, at Coggins' request, to June 1, 1978. It was agreed that Coggins would take possession when the present tenants vacated on July 15 and that no rent would accrue until that date, although a security deposit was paid by Coggins upon the signing of the lease. Coggins left for Rome, Italy, on June 30, 1978, from Philadelphia and did not return until July 15, 1978. On July 3, 1978, the complaint was filed.
After her return from Rome on July 15, Coggins stayed for approximately one to two weeks at the apartment at 136 East 56th Street before she decided she would not be able to continue there because of her dissatisfaction with the landlord and her general unhappiness there. She returned to Mr. Zappi's apartment at 521 Park Avenue and entered into a lease with Mr. Zappi in August for her use of the apartment. Even though the lease was executed in August, it was backdated to read "as of June 15." Coggins began working in New York in August as a receptionist in a law office and has worked and resided there until the present time.
During the month of June, 1978, Coggins did not keep any belongings or property in New York, although she did continue to keep her property in Chester County, Pennsylvania. In addition, during this period, Coggins represented her address at various times as being 521 Park Avenue (an insurance claim form), 136 East 56th Street (a job application filled out two days before she leased the 56th Street apartment), and Rob Roy Farm (an application for the lease of the 56th Street apartment).
We find that Coggins had not established domicile in New York as of July 3, 1978. The Court places emphasis on the following factors: (1) Coggins spent only two or three nights in New York during the month of June while the establishment of a long-term residence is not required, the Court is convinced that the brief, transitory presence as a house guest for two or three nights during the entire month is not sufficient to establish the requisite physical presence or to demonstrate an intent to remain in New York indefinitely; (2) Coggins' admitted awareness of the importance of establishing diversity of citizenship for the purposes of this suit further reduces the probative value of her clearly inconsistent declarations as to her residence; (3) Coggins did not have any substantial possessions in New York before July 3, but maintained all of her possessions in Chester County, Pennsylvania, at the Rob Roy Farm; (4) although Coggins probably established New York as her domicile subsequent to her return from Rome, her subsequent actions are not directly relevant to our determination of her domicile on July 3; (5) we note that the backdating of the leases for the two apartments reinforces our finding that Coggins was, at most, a transitory house guest during the minimal time she spent in New York before July 3; and, (6) Coggins had minimal ties with New York as of July 3 in that she did not work there, did not pay taxes there and, in general, retained her ties with Rob Roy Farm. Accordingly, we will grant the Fed.R.Civ.P. 12(b) (1) motions of Lamb, Wollman, Conroy, Murray and Carpenter to dismiss Coggins' state law claims for lack of subject matter jurisdiction. In addition, the Court will Sua sponte dismiss the state law claims against the County, McQueen, Smith and Thomas Smith for lack of subject matter jurisdiction.
II. Fed.R.Civ.P. 12(b)(2) and (5)
Murray and Carpenter have each moved to dismiss for lack of personal jurisdiction and for insufficiency of service of process, pursuant to Fed.R.Civ.P. 12(b)(2) and (5), respectively. In support thereof, Murray argues that service of process upon her, a citizen and resident of Delaware, was insufficient in that a copy of the complaint was not sent by registered mail to the Secretary of the Commonwealth of Pennsylvania. Carpenter argues that he, a citizen and resident of Delaware, was not served by registered mail at his correct place of business.
Coggins' complaint alleges that Murray and Carpenter are citizens and residents of Delaware. Fed.R.Civ.P. 4(e) provides, in pertinent part, that service of process upon a party not found within the state in which the district court sits may be served in accordance with a statute or rule of court of that state. Pennsylvania Rule of Civil Procedure 2079(a), Pa.R.C.P. No. 2079(a), 42 Pa.C.S.A., which governs service of process upon nonresident defendants provides, in pertinent part:
. . . process may be served upon the defendant personally or by having the sheriff of said county send by registered mail, return receipt requested, a true and attested copy of the process:
(1) to the Secretary of the Commonwealth, accompanied by the fee prescribed by law, and