364 F.3d 348 (1st Cir. 2004), 03-1670, Garcia Perez v. Santaella

Docket Nº:03-1670.
Citation:364 F.3d 348
Party Name:Carlos A. GARC
Case Date:April 13, 2004
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 348

364 F.3d 348 (1st Cir. 2004)

Carlos A. GARCÍA PÉREZ, et al., Plaintiffs, Appellants,

v.

Alvaro SANTAELLA, M.D., et al., Defendants, Appellees.

No. 03-1670.

United States Court of Appeals, First Circuit

April 13, 2004

Heard March 1, 2004.

Page 349

Joan S. Peters with whom Andrés Guillemard-Noble and Nachman & Guillemard were on brief, for appellants.

José Héctor Vivas with whom Vivas & Vivas was on brief, for appellee Iván Terón Méndez.

Raphael Pena Rámon and De Corral & De Mier, for appellee Ashford Presbyterian Community Hospital.

Before TORRUELLA, Circuit Judge, COFFIN, Senior Circuit Judge, and SELYA, Circuit Judge.

COFFIN, Senior Circuit Judge.

Appellants Carlos A. García Pérez and Gisela M. Baerga Torres, together with their infant daughter Carla Isabel (collectively, the Garcías), challenge the district court's determination that they were domiciled in Puerto Rico when they filed a medical malpractice claim against appellees Dr. Iván Terón Méndez and Ashford Presbyterian Community Hospital. The Garcías contend that they were domiciled in Florida at the time of the filing, thus establishing complete diversity between the plaintiffs and the defendants and conferring subject matter jurisdiction on the district court under 28 U.S.C.§ 1332(a)(1). After deliberating upon this well briefed and argued case, we conclude that errors of both law and fact require recognition of Florida as the state of domicile. We therefore reverse.

I. Background

The underlying medical malpractice claim arose out of the May 6, 1996, birth of quadruplets to Carlos and Gisela. At the time, the Garcías were living in Gurabo, Puerto Rico. The babies were premature and only one child--Carla Isabel--survived. She suffered from a variety of complications requiring ongoing and intensive medical care. In June 1996, having already lost three of the quadruplets while they were in the care of Ashford Presbyterian, the Garcías decided to move Carla Isabel to Miami Children's Hospital.

On May 5, 1997, the medical malpractice claim was filed. Discovery on the merits continued until March 23, 2001, when appellee Terón Méndez filed a motion to dismiss under Fed.R.Civ.P. 12(b)(1), alleging that the Garcías were domiciled in Puerto Rico, and the court therefore lacked subject matter jurisdiction. Ashford Presbyterian joined this motion.

A magistrate judge's report and recommendation, issued February 20, 2002, concluded that the Garcías were domiciled in Florida at the time the suit was filed and recommended that the motion to dismiss be denied. Reviewing the contested portions

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of the report and recommendation de novo, see 28 U.S.C. § 636(b)(1), the district court reached a contrary determination. The court noted a series of remaining contacts between the Garcías and Puerto Rico, supporting each example with a citation to a particular page and line number of Carlos's deposition, taken on August 8, 2000. At that time, however, the deposition transcript had not been submitted to the court. The only portions of the transcript before the court were five pages submitted with appellants' opposition to the motion to dismiss, but these did not include several portions of the deposition cited by appellees. The district court relied on the appellees' citations. In total, the district court listed eleven factors favoring a Puerto Rico domicile, relying not only on the citations, but also on the phrasing of appellees' objections to the magistrate judge's report.1

Following the court's order of dismissal, appellants moved for reconsideration. They pointed out discrepancies between the facts as described by the district court and the actual deposition transcript. Appellants also argued that the court made a legal error in giving significant weight to Carlos's statement that he would like to return to Puerto Rico at some undetermined point in the future.

Sensing the precarious nature of the court's reliance on their paraphrasing, appellees submitted the entire deposition transcript with their opposition to the motion for reconsideration. The court accepted the invitation and "carefully read the deposition testimony provided." It found nothing to change its conclusion and denied the motion. This appeal ensued.

II. Standard of Review

The determination of domicile presents a mixed question of law and fact. Bank One, Texas, N.A. v. Montle, 964 F.2d 48, 51 (1st Cir. 1992). To the extent that the motion to dismiss called upon the district court to resolve factual challenges, we will not set aside those findings unless clearly erroneous. Valentín v. Hospital Bella Vista, 254 F.3d 358, 365 (1st Cir. 2001). " 'A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.' " Lundquist v. Precision Valley Aviation, Inc., 946 F.2d 8, 11 (1st Cir. 1991)(quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)(internal citations omitted)). We review the court's legal conclusions de novo. Valentín, 254 F.3d at 365.

III. Law of Domicile

The federal courts have jurisdiction over controversies arising between "citizens of different states," provided that the amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a)(1). Citizenship is determined by domicile, Lundquist, 946 F.2d at 10, which can be established by demonstrating that the individual is physically present in the state and has an intent to remain indefinitely, Sun Printing & Publ'g Ass'n v. Edwards, 194 U.S. 377, 383, 24 S.Ct. 696, 48 L.Ed. 1027 (1904); Hawes v. Club Ecuestre El Comandante, 598 F.2d 698, 701 (1st Cir. 1979). Once challenged, the party invoking diversity jurisdiction must prove domicile by a preponderance of the evidence. Bank One, 964 F.2d at 50. The key point of inquiry is whether diversity

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of citizenship existed at the time the suit was filed; subsequent events may bear on the sincerity of a professed intention to remain but are not part of the primary calculus. Hawes, 598 F.2d at 700; Miranda v. Miranda, 686 F.Supp. 44, 47 (D.P.R.1988).

Courts typically take into account a variety of factors indicating the extent of a particular party's ties to the purported domicile. These include:

current residence; voting registration and voting practices; location of personal and real property; location of brokerage and bank accounts; membership in unions, fraternal organizations, churches, clubs and other associations; place of employment or business; driver's license and other automobile registration; [and] payment of taxes ...

13B Wright, Miller & Cooper, Federal Practice and Procedure § 3612 (2d ed.1984). See also Bank One, 964 F.2d at 50; Hawes, 598 F.2d at 700. No single factor is dispositive, and the analysis focuses not simply on the number of contacts with the purported domicile, but also on their substantive nature. Lundquist, 946 F.2d at 12 ("[D]omicile need not be determined by mere numerical comparison of the number of factors that may appear to favor each side of the issue."); see also Leon v. Caribbean Hosp. Corp., 848 F.Supp. 317, 318 (D.P.R.1994) (favoring ties that "could not be easily undone" over more easily established ties).

IV. Analysis

We turn first to two errors of law affecting the baseline of the district court's analysis.

First, the court erred when it gave considerable weight to Carlos's testimony--taken more than three years after the case was filed--that he thought "just about every other day" of returning to Puerto Rico. In Hawes, we determined that a "floating intention" to return to a former domicile at some unspecified future date does not prevent a party from acquiring a new domicile. 598 F.2d at 701. Carlos's vague and noncommittal language is precisely within the contours of what we consider a floating intention. See Valentín, 254 F.3d at 367 (characterizing a floating intention as "[a]n amorphous desire to relocate from one place to another at an indeterminate future date" and noting that such an " 'indefinite and ambulatory future intention ... is of no real significance' ")(citing Hardin v. McAvoy, 216 F.2d 399, 403 (5th Cir. 1954)). As we said in Hawes, an individual is "entitled to keep [his] options open," 598 F.2d at 704. Carlos's statement should not have been a significant element of the court's analysis.

Second, the court erred in enunciating the burden of proving domicile once challenged.2 The correct burden of proof is preponderance of the evidence. Bank One, 964 F.2d at 50. The district court's opinion is at best confusing on this issue. In initially setting out the burden, the court correctly stated that plaintiffs bore the burden of proving domicile by a preponderance of the evidence, citing Bank One. Two paragraphs later, it stated the burden as that of proving domicile by clear and convincing evidence. It cited Valentín, which, however, says nothing about the nature of the burden. Shortly thereafter, the court repeated the clear and convincing

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evidence standard, erroneously citing Bank One. Finally, the court concluded that plaintiffs "have failed to rebut this evidence [of Puerto Rico domicile] with clear and convincing proof," immediately following this language with an invocation of "preponderance of evidence," citing Francis v. Goodman, 81 F.3d 5, 6 (1st Cir. 1996). Appellants did not raise the issue below,3 but it is settled in this circuit that an appellate court has discretion, in exceptional cases, to relieve a party of...

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