477 F.2d 1116 (6th Cir. 1973), 72-1424, Stifel v. Hopkins

Docket Nº:72-1424.
Citation:477 F.2d 1116
Party Name:Orville E. STIFEL, II, Plaintiff-Appellant, v. William F. HOPKINS, Esq., et al., Defendants-Appellees.
Case Date:May 01, 1973
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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477 F.2d 1116 (6th Cir. 1973)

Orville E. STIFEL, II, Plaintiff-Appellant,

v.

William F. HOPKINS, Esq., et al., Defendants-Appellees.

No. 72-1424.

United States Court of Appeals, Sixth Circuit.

May 1, 1973

Submitted Oct. 3, 1972.

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[Copyrighted Material Omitted]

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Orville E. Stifel, II, pro se.

Lindhorst & Dreidame by James L. O'Connell, Cincinnati, Ohio, for defendant-appellee, William F. Hopkins.

Before PHILLIPS, Chief Judge, and EDWARDS and McCREE, Circuit Judges.

McCREE, Circuit Judge.

This case presents the question whether a federal prisoner who is incarcerated in a state other than the state of his domicile prior to conviction can show that he is a citizen of the state of incarceration for purposes of federal diversity jurisdiction. The District Court held that as a matter of law the prisoner was precluded from making this showing, and dismissed the complaint for lack of jurisdiction. We reverse.

In 1969, appellant was convicted by a jury of violating 18 U.S.C. § 1716 (1970), by mailing an "infernal machine" that exploded and caused the death of the addressee upon opening the package. Appellant's conviction was subsequently affirmed by this court. United States v. Stifel, 433 F.2d 431 (6th Cir. 1970), cert. denied, 401 U.S. 994, 91 S.Ct. 1232, 28 L.Ed.2d 531 (1971), and he is now serving a life sentence in the federal penitentiary in Lewisburg, Pennsylvania. Prior to his arrest and conviction, appellant lived with his parents in Cincinnati, Ohio, and concededly was a citizen of Ohio. As we recognized in our consideration of his prior appeal, he was known in his community "as something approaching a model young man." 433 F.2d at 431.

In 1971, following the denial of certiorari by the Supreme Court in appellant's criminal case, he instituted this action against his parents and against the attorney who represented him throughout the criminal proceedings. Reciting that

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plaintiff was a citizen of Pennsylvania, that defendants were citizens of Ohio, and that the amount in controversy exceeded $10,000, the complaint, which was filed in United States District Court for the Southern District of Ohio, invoked the diversity jurisdiction of the court. The complaint asserted that the attorney had fraudulently induced plaintiff to retain him and had deliberately and negligently engaged in acts of professional misconduct to the detriment of plaintiff; that plaintiff's parents had agreed to pay the attorney a large sum of money for representation of their son and then obtained a judgment in federal court against plaintiff in the amount of their debt to the attorney; and that plaintiff was entitled to compensatory and punitive damages from the attorney and to injunctive relief against the payment of any moneys by plaintiff's parents to the attorney.

Defendant attorney moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction. In support of this motion, he submitted an affidavit stating that plaintiff resided with his parents in Ohio until he was incarcerated in federal prison in Pennsylvania and that Stifel was in prison at the time of suit. Plaintiff filed a counter-affidavit in which he stated that he was 25 years of age, unmarried, and childless; that from July 1969 he had resided in Pennsylvania and would continue to do so indefinitely; that all his personal belongings and assets were in Pennsylvania and that all his business transactions were conducted in Pennsylvania; that, because of the actions of his attorney as set out in the complaint, he had been subject to public scorn and ridicule in Ohio, had become a "notorious person" there, and was a "target of great public hostility" in his former community, and that he therefore did not intend ever to return to Ohio. He stated that he considered Pennsylvania his home and intended to remain there indefinitely. Plaintiff subsequently submitted a supplemental memorandum in which he asserted that federal prisoners have some choice of the particular prison facility in which they will be incarcerated and that transfers are often allowed, and he contended that he had decided to remain in Pennsylvania despite urgings by unnamed prison officials that he transfer to a facility in Indiana.

The District Court granted the motion to dismiss. The court accorded no weight to appellant's affidavit on the ground that appellant was not voluntarily in Pennsylvania and his intentions regarding his domicile if and when he should be released from prison were irrelevant. Appellant's domicile, the court held, remained in Ohio until appellant should have voluntarily changed it, and a prisoner cannot perform such a voluntary act because he is at all time subject to the physical and legal compulsion of federal authorities. 1

On appeal, plaintiff contends that a rule of law that precludes a prisoner from showing that he has changed his domicile and thereby denies him access to federal court is a rule that is based solely on the litigant's status as a prisoner, and as such violates the due process clause of the Fifth Amendment. He contends that it works arbitrarily to discriminate against prisoners and to deprive them of an important federal right-the right to sue in federal court. He claims that the rule constitutes an irrebuttable presumption in violation of the Fifth Amendment, that it restrains his First Amendment right to form and express his thoughts, and that it places unjustifiable obstacles in the path of prisoner-litigants that would not have to be overcome by unconfined citizens.

We agree with appellant that the District Court should not have ruled as a

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matter of law that appellant could not make the requisite showing of a change of domicile. We reach this result not on constitutional grounds but instead on the basis of our interpretation of the meaning of the word "citizen" in the statute defining the diversity jurisdiction of the federal courts.

Federal district courts have diversity jurisdiction of civil actions between "citizens of different states" if the amount in controversy exceeds $10,000. 28 U.S.C. § 1332(a)(1) (1970). The determination of a litigant's state citizenship for purposes of diversity jurisdiction is a matter of federal law, Ziady v. Curley, 396 F.2d 873, 874 (4th Cir. 1968); Taylor v. Milam, 89 F.Supp. 880, 883 (W.D.Ark.1950); see 1 J. Moore, Federal Practice (pt. 1) ¶ 0.74 [1], at 707.1 (2d ed. 1972), although federal courts may look to state law for guidance in defining terms, formulating concepts, or delineating policies. See Napletana v. Hillsdale College, 385 F.2d 871, 872 (6th Cir. 1967). Thus, although it is settled that citizenship for purposes of 28 U.S.C. § 1332(a) means domicile rather than residence, Gilbert v. David, 235 U.S. 561, 569, 35 S.Ct. 164, 59 L.Ed. 360 (1915); Williamson v. Osenton, 232 U.S. 619, 624, 34 S.Ct. 442, 58 L.Ed. 758 (1914); see D. Currie, Federal Courts 250 (1968); 1 J. Moore, supra, ¶ 0.74 [3], considerations on which federal courts rely in determining domicile often derive from state choice-of-law rules that have been developed in such diverse contexts as probate jurisdiction, taxation of incomes or intangibles, or divorce law. See 1 J. Moore, supra, ¶ 0.74 [3.-1], at 707.53; C. Wright, Law of Federal Courts § 26, at 86 n. 4 (2d ed. 1970); Restatement (Second) of Conflict of Laws § 11, comment o (1971); cf. Note, Evidentiary Factors in the Determination of Domicile, 61 Harv.L.Rev. 1232, 1233-34 (1948). Although this importation of the law of conflicts into resolution of federal jurisdictional questions can have the unfortunate consequence of causing federal courts to lose sight of important federal interests that may be involved, conflicts law is useful in providing basic working definitions. But see Currie, The Federal Courts and the American Law Institute (pt. 1), 36 U.Chi.L.Rev. 1, 10-12 (1968).

To acquire a domicile within a particular state, a person must be physically present in the state and must have either the intention to make his home there indefinitely or the absence of an intention to make his home elsewhere. Gilbert v. David, supra, 235 U.S. at 569-570, 35 S.Ct. 164; Gallagher v. Philadelphia Transp. Co., 185 F.2d 543, 546-547 (3d Cir. 1950); see 1 J. Moore, supra, ¶ 0.74 [3.-1]; C. Wright, supra, § 26. A threshold inquiry, then, is whether a person has the legal capacity to form the intention to abide where he resides. Although in a federal diversity case the capacity of a person to sue or be sued is to be determined by the law of the state of the litigant's domicile, Fed.R.Civ.P. 17(b), and although state law may define certain concepts or relations that bear on the question of a litigant's disability to perform particular acts, see Spurgeon v. Mission State Bank, 151 F.2d 702 (8th Cir. 1945), cert. denied, 327 U.S. 782, 66 S.Ct. 682, 90 L.Ed. 1009 (1946), the determination in a diversity case whether a litigant can acquire citizenship in a particular state is a federal question to be resolved in accordance with federal principles. Cf. O'Brien v. Avco Corp., 425 F.2d 1030, 1034 (2d Cir. 1969); Ziady v. Curley, supra; Napletana v. Hillsdale College, supra.

If appellant is not legally capable of establishing a domicile in Pennsylvania, it must be either because he is in Pennsylvania under compulsion and for that reason cannot, as a matter of law, form the intent to make the state his home, or because he is under a civil disability resulting from his status as an inmate of a federal prison. We will consider each of these possible reasons in turn.

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In his essay on the subject of domicile in 1830, Joseph Story stated the rule to be that "[r]esidence in a place by constraint, or involuntarily, will not give...

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