Martin Katz and Louana Katz v. The Goodyear Tire and Rubber Company

KAUFMAN, Circuit Judge

(concurring).

I join in the result but disagree with Part II B of my brother Pierce’s opinion’. I write separately to take issue with certain conclusions regarding the burden of proving intent to change domicile and to make clear that there may be permissible alterna*246tives to a full trial on the merits in a ease such as the one before us.

I agree with my colleagues that Katz, as the party seeking to avail himself of the benefits of New York’s borrowing statute, would bear the initial burden of proof at trial on the issue of domicile. I am not nearly so certain, however, that New York law would shift the burden to Goodyear merely because the parties agree that Katz was a New York domiciliary at some point in the past. Conceivably, Katz might have acquired and given up any number of domiciles between 1974 and 1978, when the instant cause of. action accrued. In any event, I do not believe that we have to decide that issue today. For the purpose of determining whether a grant of summary judgment was proper in this case, burdens of proof at trial are important only insofar as they indicate what is or is not a material fact within the meaning of Fed.R. Civ.P. 56.

Further, although I agree there exists a genuine dispute as to a material issue of fact in this case, I am troubled by the implication that it is not possible to dispose of such discrete issues as this one without resort to a full trial on the merits. While recognizing that summary judgment is a “drastic remedy”, Heyman v. Commerce and Industry Co., 524 F.2d 1317, 1320 (2d Cir.1975), this Court has long urged that expeditious methods (such as mini-trials) be employed to resolve preliminary factual issues whenever appropriate. See Jenkins v. Chemical Bank, 721 F.2d 876, 880 (2d Cir.1983). Principles of sound judicial administration require that this effort go forward, and that full-blown trials be avoided where what is essentially a procedural dispute could preclude consideration of the underlying claim. Without commenting upon the precise procedure to be utilized on remand in this case, it would seem paradoxical to require a full trial on the merits to determine whether a trial is appropriate.