465 F.2d 1298 (3rd Cir. 1972), 72-1337, Krasnov v. Dinan

Docket Nº:72-1337.
Citation:465 F.2d 1298
Party Name:George S. KRASNOV et al., Appellants, v. Brendan DINAN.
Case Date:September 07, 1972
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 1298

465 F.2d 1298 (3rd Cir. 1972)

George S. KRASNOV et al., Appellants,

v.

Brendan DINAN.

No. 72-1337.

United States Court of Appeals, Third Circuit.

Sept. 7, 1972

Argued July 11, 1972.

Page 1299

Donald J. Farage, Farage & Shrager, Philadelphia, Pa., for appellants.

John R. McConnell, Morgan, Lewis & Bockius, Philadelphia, Pa., (Thomas C. Sadler, Jr., Philadelphia, Pa., on the brief), for appellee.

Before ALDISERT, MAX ROSENN, and HUNTER, Circuit Judges.

OPINION

ALDISERT, Circuit Judge.

This appeal requires us to decide whether plaintiffs sustained the burden of proving diversity of citizenship of the parties in order to confer federal jurisdiction. Specific to our inquiry is a review of the district court's finding that because defendant intended to remain at his Pennsylvania residence indefinitely, he must be considered a citizen of that state, 333 F.Supp. 751, 339 F.Supp. 1357.

After the jurisdictional allegation was traversed, the district court considered evidence produced both by depositions, Tanzymore v. Bethlehem Steel Corp., 457 F.2d 1320 (3d Cir. 1972), and at an evidentiary hearing, and concluded that defendant, a member of a religious order, was a citizen of Pennsylvania. Because plaintiffs were also citizens of that state, and because federal jurisdiction was alleged solely on diversity, 28 U.S.C. § 1332, judgment was entered in favor of the defendant.

The factual complex presented to the district court was unusual, but the controlling legal principles are well settled. Historical or chronological data which underline a court's determination of diversity jurisdiction are factual in nature, McSparran v. Weist, 402 F.2d 867 (3d Cir. 1968), cert. den. sub nom., Fritzinger v. Weist, 395 U.S. 903, 89 S.Ct. 1739, 23 L.Ed.2d 217 (1969), and, on review, are subject to the clearly erroneous

Page 1300

rule. F.R.Civ.P. Rule 52(a), 28 U.S.C.; Hoffman v. Lenyo, 433 F.2d 657 (3d Cir. 1970); Joyce v. Seigel, 429 F.2d 128 (3d Cir. 1970); 9 Wright & Miller, Federal Practice and Procedure: Civil § 2589, at 759 (1971). See also Walden v. Broce Constr. Co., 357 F.2d 242 (10th Cir. 1966).

Where the ultimate conclusion is a determination of a party's citizenship, the requisite intention to establish domicile, and therefore citizenship, is a factual finding. Gallagher v. Philadelphia Transp. Co., 185 F.2d 543 (3d Cir. 1950). To find this intention, the court must find "an actual, not pretended, change of domicile; in other words, the removal must be 'a real one, animo manendi, and not merely ostensible.' Case v. Clarke, 5 Mason, 70. The intention and the act must concur in order to effect such a change of domicile as constitutes a change of citizenship." Morris v. Gilmer, 129 U.S. 315, 328, 9 S.Ct. 289, 293, 32 L.Ed. 690 (1889). Professor Wright has neatly synthesized the doctrine: "A citizen of the United States can change his domicile instantly. To do so, two elements are necessary. He must take up residence at the new domicile, and he must intend to remain there. Neither the physical presence nor the intention to remain is alone sufficient." Wright, Federal Courts § 26, at 86 (2d ed. 1970). 1 Cf., the lesser degree of proof required to establish status of "resident." Government of the Virgin Islands ex rel. Bodin v. Brathwaite, 459 F.2d 543 (3d Cir. 1972). It is the citizenship of the parties at the time the action is commenced which is controlling. Brough v. Strathmann Supply Co., 358 F.2d 374 (3d Cir. 1966). One domiciled in a state when a suit is begun is "a citizen of that state within the meaning of the Constitution, art. 3, § 2, and the Judicial Code . . . (Gassies v. Ballon, 6 Pet. 761, 8 L.Ed. 573; Boyd v. Nebraska, 143 U.S. 135, 161, 36 L.Ed. 103, 109, 12 S.Ct.Rp. 375; Minor v. Happersett, 21 Wall. 162, 22 L.Ed. 627.) . . ." Williamson v. Osenton, 232 U.S. 619, 624, 34 S.Ct. 442, 58 L.Ed. 758 (1914); Pemberton v. Colonna, 290 F.2d 220 (3d Cir. 1961). Where one lives is prima facie evidence of domicile, District of Columbia v. Murphy, 314 U.S. 441, 62 S.Ct. 303, 86 L.Ed. 329 (1941), but mere residency in a state is insufficient for purposes of diversity. Sun Printing and Publishing Ass'n v. Edwards, 194 U.S. 377, 24 S.Ct. 696, 48 L.Ed. 1027 (1904). The fact of residency must...

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