Venue, People with Two Homes, and Commentator / Retired Judge Andrew Napolitano

Remember: Lawyers' true superpower is to turn every question into a question about procedure.

From today's decision in Corbishley v. Napolitano, by Judge Vernon S. Broderick:

Plaintiff Charles Corbishley brought suit in this Court on September 11, 2020, under diversity jurisdiction. Plaintiff argues that venue is proper is this District under 28 U.S.C. § 1391(b)(1) because Defendant resides in New York City, and does not identify any other reason why venue would be proper in this District.

The Complaint alleges four counts brought under New Jersey Stat. § 2A:14-2b. According to the Complaint, Defendant, then a New Jersey Superior Court Judge presiding over a case in which Corbishley was a criminal defendant, sexually assaulted Corbishley at a residence in Hackensack, New Jersey, in or around December 1988. [Judge Napolitano immediately sued Corbishley in a separate case,] alleging that Plaintiff's allegations in his Complaint and statements to the press and public through counsel and agents amount to defamation against Napolitano….

Section 1406 [of Title 28 of the U.S. Code] provides that "[t]he district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought." … [Title] 28 U.S.C. § 1391 … determines that "[a] civil action may be brought in—

"(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located;

"(2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or

"(3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action."

For purposes of § 1391(b)(1), "a natural person … shall be deemed to reside in the judicial district in which that person is domiciled."

The essence of the dispute between the parties concerns which judicial district Napolitano "resides" in for purposes of § 1391(b)(1). Plaintiff does not contest that nearly all of the events giving rise to the causes of action occurred in New Jersey, the Complaint does not reference § 1391(b)(2) as a basis for venue, and Plaintiff's opposition papers do not argue that venue would be proper under § 1391(b)(2)…. [I]in assessing whether venue is proper under § 1391(b)(1), I must determine where Defendant is domiciled.

"Although a person may have more than one residence, she may only have one domicile at any one time." "Domicile is established initially at birth and is presumed to continue in the same place, absent sufficient evidence of a change. To effect a change of domicile, 'two things are indispensable: First, residence in a new [domicile]; and, second, the intention to remain there. The change cannot be made, except facto et animo. Both are alike necessary. Either without the other is insufficient.'" In other words, if a person is domiciled in a particular location, that location remains his domicile "whenever he is absent" so long as "he has the intention of returning." "In determining domicile … courts consider factors including voting registration, employment, current residence, location of real and personal property, location of spouse and family, driver's license, automobile registration, tax payment and addresses, and location of a person's bank account and physician."

The parties agree that Napolitano owns two homes—one in Sussex County, New Jersey, and one in Manhattan—and that he typically spends at least some nights each week staying at each home. However, Napolitano offers significant evidence that even if he is at times absent, he has "the intention to remain" in Sussex County. Napolitano asserts in his declarations that he has: (1) a New Jersey's driver's license; (2) a New Jersey firearm license, and (3) that he pays taxes, is registered to vote, and has all four of his vehicles registered and insured in New Jersey. Napolitano also states that he owns and operates a farm in New Jersey through a New Jersey corporation with a New Jersey bank account. In addition, his church and all his doctors are located in New Jersey. Finally, Napolitano also swears that he "intend[s] to stay [in Sussex County] into retirement and beyond."

In opposition, Plaintiff's strongest evidence is a declaration from an individual who asserts that Napolitano personally told him at times between 2014-2017 "that he lives and works in Manhattan (5) five days a week" and "that he goes to his New Jersey home only on the weekends." The assertions in the declaration are in tension with Napolitano's assertions in his declarations that he has "always" spent at least half his time at his home in Sussex County, that he "spend[s] far fewer than 180 days or nights of the year at the New York City apartment," and that his Sussex County home has been his "primary residence since May 2001."

The remainder of Plaintiff's factual arguments provide little help to his New York residency argument. Plaintiff provides a declaration from a private investigator who claims that an "onsite Manager who identified himself as Keith" at the New York City building where Napolitano's apartment is located told him that "Napolitano lives here and that he sometimes goes for the weekend to a farm in New Jersey." Assuming for these purposes that the investigator's declaration is admissible, it is only marginally probative—the investigator provides no indication of how well, if at all, the manager knows Napolitano or his schedule, and Napolitano already admits that he "lives" at the apartment at times during the week.

Plaintiff also notes Napolitano's employment at Fox News, whose studios are located in Manhattan, and as a visiting law professor at Brooklyn Law School. Napolitano, however, asserts that he has not worked at Brooklyn Law School since 2017, when he only worked there two days per week. These facts are also of limited probative value since Napolitano readily admits that he spends a certain portion of his time in New York City, but asserts that he spends more than half his time at his New Jersey residence and does not work at the Fox studios on Fridays.

Ultimately, the parties' main factual disagreement—over the precise amount of time Napolitano spends in each place—is not determinative in the domicile analysis. Regardless of where Napolitano primarily resides, the uncontested evidence—demonstrating that (1) he is registered to vote, drive, and own firearms in New Jersey, (2) he owns and operates a farm in New Jersey, (3) his vehicles are registered and insured in New Jersey, (4) he pays taxes in New Jersey, and (5) his physicians and church are located in New Jersey—strongly corroborate his claim that he intends to remain in New Jersey for the indefinite future. In light of all these undisputed and tangible connections to his home in New Jersey, it is mostly inconsequential and not material whether he spends more of his time at one home or the other.

Because Defendant is domiciled in New Jersey, and nearly all the events giving rise to suit occurred outside this District, venue is improper under §1391(b)(1) and § 1391(b)(2). Venue is proper in the District of New Jersey—both under § 1391(b)(1), because Napolitano resides in New Jersey, and under § 1391(b)(2), because the alleged events took place in New Jersey.

Therefore, because there exists a different district in which this suit can properly be brought, venue is also improper in this District under § 1391(b)(3). With Plaintiff unable to satisfy any of the options under § 1391(b), I must transfer this case to the District of New Jersey pursuant to § 1406(a).