United States District Court, D. Connecticut
RULING ON PENDING MOTIONS
Jeffrey Alker Meyer, United States District Judge
Plaintiff Gregory Imbruce brings this action against defendants Teri Buhl and MarketNexus Media, Inc. ("MarketNexus") for allegedly defamatory statements they made on the Internet. For the reasons that follow, I will deny plaintiff's motion to remand. I will grant Buhl's motion to dismiss for improper service of Buhl. I will otherwise deny defendants' claims of lack of personal jurisdiction. I will also deny defendants' motion to dismiss for failure to state a claim. And I will deny defendants' motion to strike without prejudice to renewal at a later time in the event defendants are able to demonstrate prejudice.
Plaintiff Gregory Imbruce allegedly has extensive experience investing in distressed companies. He contends that defendants Teri Buhl and MarketNexus disparaged him and his investment activities on various websites and in electronically published reports. He alleges three state law causes of action against defendants for per se libel, per se defamation-libel, and publicly placing another in false light.
Plaintiff filed this action in Connecticut Superior Court in March 2015. Defendants timely removed the action to this Court, alleging that there is federal diversity jurisdiction. Plaintiff is a citizen of Connecticut, and defendants alleged that at the time of the filing of the action Buhl was a citizen of New York (notwithstanding a prior domicile in Connecticut) and that MarketNexus was a citizen of California.
On August 13, 2015, the Court held an evidentiary hearing for the purpose of determining facts necessary to consider defendants' challenges to the adequacy of the service of process and to determine Buhl's state-of-citizenship for diversity jurisdiction purposes. Buhl testified that she moved to New York from Connecticut in September 2014, some months prior to the filing of this action. Although her website (www.teribuhl.com) at one point listed her residence as Connecticut, she currently lives and works in New York and intends to remain there indefinitely. She does not own property or have a driver's license in Connecticut. She travels back to New Canaan, Connecticut approximately once a week to visit a dog that she shares with her former landlord, Michael Vitiello. She leaves running shoes and a coat at Vitiello's home for the times when she walks the dog. She is litigating a misdemeanor charge in Connecticut but she is not required to remain in Connecticut in connection with this charge.
To the same effect, Vitiello testified that he is Buhl's friend and former landlord. He testified that Buhl moved out in September 2014 and that she has not had a key since moving out, but that she occasionally receives mail at his residence. According to Vitiello, Buhl comes to the house about once a week to take care of his dogs and to pet sit on long weekends when his sister is not available. Vitiello recalled finding certain service-of-process documents for Buhl that were left in the front door of his house at some point after Buhl had already moved to New York.
Connecticut state marshal Joan Melhorn testified that she was hired to serve the complaint on Buhl in this case. She was originally given an obsolete address for Buhl, but she later served the complaint on Buhl by leaving the paperwork jammed between the front door and frame of Vitiello's house in New Canaan.
Connecticut state probation officer Edward Conway testified that he supervised Buhl in connection with a pending misdemeanor charge against her. Buhl told him in February 2015 that she was seriously considering moving to New York, and he said that she could do so. He further testified that the only stipulation that Buhl had pending the appeal of her misdemeanor conviction was to notify probation if she traveled outside of the tri-state area for employment. At some point in August 2015, Buhl gave Conway a New York address where she now lived.
The parties have filed various motions. Each one is considered in turn.
Plaintiff’s Motion to Remand to State Court
Plaintiff moves to remand this action back to Connecticut state court on the ground that Buhl was a citizen of Connecticut when this action was filed. Federal diversity jurisdiction requires complete diversity of citizenship and is not satisfied if any one plaintiff is a citizen of the same state as any one defendant. See, e.g., Hallingby v. Hallingby, 574 F.3d 51, 56 (2d Cir. 2009). Citizenship is determined as of the date the suit was filed. See Wolde-Meskel v. Vocational Instruction Project Cmty. Servs., Inc., 166 F.3d 59, 62 (2d Cir. 1999) ("Satisfaction of the § 1332(a) diversity requirements (amount in controversy and citizenship) is determined as of the date that suit is filed-the ‗time-of-filing' rule."). For purposes of federal diversity jurisdiction, the citizenship of a natural person is determined by reference to the person's domicile-that is, "the place where a person has his true fixed home and principal establishment, and to which, whenever he is absent, he has the intention of returning." Palazzo ex rel. Delmage v. Corio, 232 F.3d 38, 42 (2d Cir. 2000).
Here, it is clear to me from the record and on the basis of the credible testimony of Buhl, Vitiello, and Conway at the evidentiary hearing that-notwithstanding Buhl's prior domicile in Connecticut-Buhl was domiciled in New York at the time that this action was filed in March 2015 and when it was removed to this Court in April 2015. Accordingly, I will ...