MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION FOR A RULING ON SUBJECT MATTER JURISDICTION
STEARNS, District Judge.
Plaintiff Colin Bower brought this action on his own behalf and as the guardian of his two minor children after his ex-wife, defendant Mirvat El-Nady, took the children to Cairo, Egypt, in August of 2009, without his consent and in violation of a court order granting Bower custody. Bower alleges that defendant EgyptAir, the airline on which El-Nady flew with her children from New York to Cairo, is liable for interference with Bower's custodial relations, negligence, negligent infliction of emotional distress, and the loss of filial consortium. See Am. Compl.
On January 24, 2012, in papers opposing EgyptAir's motion for summary judgment, Bower asked this court to preemptively resolve the (hitherto unraised) issue of subject matter jurisdiction.1 Bower's suspicion is that EgyptAir is holding the issue as a trump card against any adverse ruling by this court. See Am. Fiber & Finishing, Inc. v. Tyco Healthcare Grp., LP, 362 F.3d 136, 138-139 (1st Cir.2004) (any party, or the court sua sponte, may raise a jurisdictional defect at any stage of the litigation). The court heard oral argument on February 10, 2012.
DISCUSSION
El-Nady's Domicile
Bower asks this court to remand his action to state court after nearly two years of federal litigation. Bower asserts that because El-Nady is a "fugitive from justice," her domicile is Massachusetts, the state from which she fled to New York, and ultimately to Cairo. (The consequence of a Massachusetts domiciliary finding would be the spoliation of the complete diversity on which federal jurisdiction depends, see 28 U.S.C. § 1332). In an electronic Order, the court asked Bower to explain the theory under which El-Nady could be deemed a "fugitive from justice" for domiciliary purposes.2 As presented to the court, Bower's premise is that in cases of international parental abduction, the abduct-or-parent is axiomatically deemed a fugitive under federal law. In support of this contention, Bower cites Pub. L. No. 96-611, § 10(a), 94 Stat. 3566, which is entitled "Parental Kidnapping":
In view of the findings of the Congress and the purposes of sections 6 to 10 of this Act set forth in section 302, the Congress hereby expressly declares its intent that section 1073 of title 18, United States Code, apply to cases involving parental kidnapping and interstate or international flight to avoid prosecution under applicable State felony statutes.
Section 1073 criminalizes the act of fleeing to avoid prosecution.
Whoever moves or travels in interstate or foreign commerce with intent either (1) to avoid prosecution, or custody or confinement after conviction, under the laws of the place from which he flees, for a crime, or an attempt to commit a crime, punishable by death or which is a felony under the laws of the place from which the fugitive flees, or (2) to avoid giving testimony in any criminal proceedings in such place in which the commission of an offense punishable by death or which is a felony under the laws of such place, is charged, or (3) to avoid service of, or contempt proceedings for alleged disobedience of, lawful process requiring attendance and the giving of testimony or the production of documentary evidence before an agency of a State empowered by the law of such State to conduct investigations of alleged criminal activities, shall be fined under this title or imprisoned not more than five years, or both.
According to Bower's reading of the statute, the act of international parental kidnapping in and of itself transforms the kidnapper into a federal fugitive. In the alternative, Bower notes that in March of 2008, the Massachusetts Probate and Family Court (Justice Merrill) held El-Nady in contempt.3 Bower argues that from this past experience, El-Nady knew or should have known that her "flight to Egypt enabled her to avoid prosecution under state parental kidnapping and contempt laws." Bower Letter, Feb. 6, 2012 (Dkt # 165).
EgyptAir, for its part, disagrees with the characterization of El-Nady as a fugitive from justice. It argues that because the United States did not file a criminal complaint against El-Nady until December 1, 2009 (well after her departure for Egypt on August 11, 2009), El-Nady could not have been fleeing a pending criminal prosecution. EgyptAir also argues that Pub. L. No. 96-611, § 10(a), simply adds kidnapping to the list of crimes for which a person can be charged with unlawful flight to avoid prosecution (or the giving of testimony), and that El-Nady was not in fact charged under section 1073.4 EgyptAir's Resp. to Order to Show Cause at 3.
More to the point is EgyptAir's argument that whether or not El-Nady is deemed a fugitive, her status as such has no effect on the fixing of her domicile for purposes of diversity jurisdiction.5 In this respect, EgyptAir is correct. The cases cited by Bower apply when the whereabouts of a fugitive are unknown. The rationale for the rule is perhaps best explained by Judge Posner in Lloyd v. Loeffler, 694 F.2d 489 (7th Cir.1982).
It seems absurd to hold that since a fugitive might be domiciled anywhere or maybe even nowhere ..., the act of becoming a fugitive puts a person beyond the jurisdiction of the federal courts. Probably the last domicile of the fugitive before he fled should be his domicile for diversity purposes.... This is a simple rule, and avoids rewarding the fugitive for his elusiveness.
Id. at 490. Where, as here, El-Nady's location — Cairo, Egypt — is known (if not her precise geographic coordinates),6 her domicile is determined by applying the usual rule — presence in a place coupled with the intent to remain there, determined as of the time the litigation commences. See Hall v. Curran, 599 F.3d 70, 72 (1st Cir.2010). See also Connectu LLC v. Zuckerberg, 522 F.3d 82, 91 (1st Cir. 2008), quoting Mollan v. Torrance, 22 U.S. 537, 539, 9 Wheat. 537, 6 L.Ed. 154 (1824) ("Citizenship is determined as of the date of commencement of an action and, therefore, in cases premised on diversity, jurisdiction `depends upon the state of things at the time of the action brought.'"). Moreover, as EgyptAir points out, there is some support for the proposition that "[a] fugitive from justice can establish a legal `domicile' where he is in hiding." United States v. Otherson, 480 F.Supp. 1369, 1371 n. 4 (D.C.Cal.1979), quoting Young v. Pollak, 85 Ala. 439, 5 So. 279, 282 (1888).7 Here it is undisputed that at the time Bower filed this lawsuit in Massachusetts, El-Nady had relocated to Egypt, and as Bower's Complaint asserts, intended to remain there with the children permanently.
EgyptAir's Request to Dismiss El-Nady or Sever Her from the Action
In a request of its own, EgyptAir asks that El-Nady be severed as a defendant from this action on two grounds.8 First, EgyptAir contends that El-Nady was not properly served within 120 days of the filing of the Complaint as Fed.R.Civ.P. 4(m) requires. Bower left the state court summons and Complaint at El-Nady's former apartment in Newton, Massachusetts, claiming it as her last "usual place of abode." See Fed.R.Civ.P. 4(e)(2). EgyptAir contends that service was not proper at the Newton address because at the time — February of 2010 — Bower knew that El-Nady resided in Cairo, Egypt. Consequently, he should have attempted to make service on her in Egypt under the Hague Convention.9
Generally, the plaintiff must show "enough of a nexus or identity between the individual served and the place where service was left to demonstrate that the individual considered that place `home' at the time of service." ... Consistent with this analysis, Massachusetts courts considering whether service was made at an individual's "last and usual place of abode" have found service to be improper where the defendant no longer resided at the address to which the summons and complaint were delivered.... Thus, in order to be considered the defendant's "last and usual place of abode" under Massachusetts law, there must be evidence that the defendant was continuing to use the address as his home.
United States v. Tobins, 483 F.Supp.2d 68, 75-76 (D.Mass.2007) (citations omitted).10
For his part, Bower argues that the court has already rejected a nearly identical argument made by EgyptAir, holding that it lacked standing to challenge the service of process on El-Nady. See Order on EgyptAir's Mot. to Dismiss or Transfer (Dkt # 82). Referencing an earlier memorandum of law in this case, Bower asserts that El-Nady was properly served at the Newton address and that, in any event, she was on notice that these claims were proceeding against her.11 See Dkt # 77. This factual assertion was accepted by Magistrate Judge Dein, see Dkt # 82, and the court is not inclined to revisit her decision.12
EgyptAir's alternative argument is for severance under Fed.R.Civ.P. 21, arguing that El-Nady is a dispensable party whose presence as a defendant casts an uncertain shadow over the court's jurisdiction.13 See Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 832, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989) ("[I]t is well settled that Rule 21 invests district courts with authority to allow a dispensable nondiverse party to be dropped at any time, even after judgment has been rendered."). The cure of a potential defect in diversity jurisdiction by resort to Rule 21 is held to be proper. See Am. Fiber & Finishing, Inc., 362 F.3d at 142. But because the court is persuaded that at the time this action was filed El-Nady's domicile was in fact in Egypt, severing El-Nady from this action is not necessary to effect any jurisdictional cure and might, in some respect, cause harm to El-Nady's interests insofar as they may parallel those of EgyptAir.14 See In re Olympic Mills Corp., 477 F.3d 1, 12 n. 10 (1st Cir.2007).
ORDER
For the foregoing reasons, the court RULES that it has subject matter jurisdiction based on diversity of citizenship.
SO ORDERED.
