652 F.3d 340 (3rd Cir. 2011), 10-2328, Washington v. Hovensa LLC

Docket Nº:10-2328.
Citation:652 F.3d 340
Opinion Judge:RENDELL, Circuit Judge.
Party Name:Gloria WASHINGTON, Appellant v. HOVENSA LLC; Triangle Construction and Maintenance, Inc.
Attorney:K. Glenda Cameron, Esq., Law Offices of K.G. Cameron, Christiansted, St. Croix, VI, Lee J. Rohn, Esq. [Argued], Law Offices of Rohn & Carpenter, Christiansted, VI, for Appellant. Sunshine S. Benoit, Esq., Bryant, Barnes, Beckstedt & Blair, Christiansted, St. Croix, VI, for Appellant Hovensa LLC. ...
Judge Panel:Before: SCIRICA, RENDELL and AMBRO, Circuit Judges.
Case Date:July 21, 2011
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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652 F.3d 340 (3rd Cir. 2011)

Gloria WASHINGTON, Appellant


HOVENSA LLC; Triangle Construction and Maintenance, Inc.

No. 10-2328.

United States Court of Appeals, Third Circuit.

July 21, 2011

Argued April 12, 2011.

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K. Glenda Cameron, Esq., Law Offices of K.G. Cameron, Christiansted, St. Croix, VI, Lee J. Rohn, Esq. [Argued], Law Offices of Rohn & Carpenter, Christiansted, VI, for Appellant.

Sunshine S. Benoit, Esq., Bryant, Barnes, Beckstedt & Blair, Christiansted, St. Croix, VI, for Appellant Hovensa LLC.

David J. Cattie, Esq. [Argued], Charles E. Engeman, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, St. Thomas, VI, for Appellee Triangle Construction and Maintenance, Inc.

Before: SCIRICA, RENDELL and AMBRO, Circuit Judges.


RENDELL, Circuit Judge.

In this appeal, we review the District Court's grant of defendants' motion to dismiss for lack of subject-matter jurisdiction based on its determination that plaintiff Gloria Washington was domiciled in the Virgin Islands at the time she filed her complaint against defendants Hovensa, LLC (" Hovensa" ) and Triangle Construction and Maintenance, Inc. (" Triangle" ), notwithstanding her insistence that she was domiciled in Texas. In reviewing a district court's conclusion regarding where a party is domiciled, our review is for clear error as to the court's factual determination but de novo as to the applicable legal principles and the court's conclusions of law. See McCann v. Newman Irrevocable Trust, 458 F.3d 281, 286 (3d Cir.2006) (" A

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district court's determination regarding domicile or citizenship is a mixed question of fact and law...." ); Krasnov v. Dinan, 465 F.2d 1298, 1299-1300 (3d Cir.1972) (" Historical or chronological data which underline a court's determination of diversity jurisdiction are factual in nature." ) (internal citations omitted).

Although a court's inquiry into where a party is domiciled involves a predominantly factual determination, see McCann, 458 F.3d at 286; Krasnov, 465 F.2d at 1300, certain well-defined legal precepts can, and in this case, do, govern that determination. Here, we take issue primarily with the District Court's application of those legal principles to reach the conclusion that Washington was domiciled in the Virgin Islands. We also find that the District Court erred in concluding that Washington's business, domestic and social life was centered in St. Croix. We will accordingly remand this case.


On April 5, 2006, Gloria Washington was injured while driving a rental car on Hovensa's property in the Virgin Islands. She alleged in her complaint that, at the time she was driving, improperly trained Triangle employees were conducting sandblasts without proper supervision or barricades and using faulty sandblasting equipment. A sandblast that hit Washington's vehicle shattered the driver's side window, resulting in physical injuries to Washington and damage to her rental car. On July 24, 2006, she filed a complaint in the District Court of the Virgin Islands against Hovensa and Triangle, citizens of the Virgin Islands, based on diversity of citizenship, claiming that they were responsible for her physical injuries and the damage to the vehicle.

At the time Washington filed this complaint, she had ties to both the Virgin Islands and Texas. She owned a home in Baytown, Texas, but also had an apartment in St. Croix, where she had been living and working for seven months. She had been employed in Baytown, Texas by Sabine Storage Operations, a Texas corporation, but went to the V.I. in December 2005 to work as a pipe inspector for Sabine; there, she was assigned to work at the Hovensa refinery in St. Croix. When asked by opposing counsel at her deposition whether she knew, in December 2005, " how long the assignment [at the Hovensa refinery] was going to be, or was it indefinite," she replied: " I didn't know. It was indefinite." In summarizing her testimony on this point, the District Court stated that her " work assignment at the Hovensa refinery was for an indefinite period of time," a fact the Court considered " significant."

Washington was born in St. Croix, and several of her family members, including her mother, sister, and brothers, resided there in July 2006. Upon returning to the Virgin Islands in December 2005, Washington rented and furnished an apartment that she was living in at the time of the accident. The District Court found that her apartment " was in close proximity" to her " mother, sisters, brothers, nieces and nephews" and that " she socialized with them on a regular basis." The record clearly establishes only that she lived in the same area as her sister and that, at the time of her deposition, she went swimming every couple of weeks with her family. In addition, Washington began a romantic relationship with a V.I. resident after arriving in St. Croix but before filing her complaint. Between her arrival in St. Croix and the time of the accident, Washington had not returned to Texas.

At the time she filed her complaint, Washington also had several links to Texas: she owned the home in Baytown, Texas, which she was maintaining at the time

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of the suit and in which her daughter now lives; she received mail at her Baytown address; her primary care doctor, whom she saw at least yearly, was located in Texas; she maintained her Texas driver's license and owned a car in Texas; she paid taxes in Texas; she continued to have a bank account in Texas; she maintained a cell phone with a Texas company; and she visited Texas about three to five times a year. Conversely, in the V.I., she did not have a primary care physician, a driver's license, or a bank account, and she had never purchased a home or joined any organizations there. In July 2006, she was receiving a $100 per diem from her employer to cover her rent and other living expenses during her time in St. Croix. In an affidavit submitted after defendants filed their motion to dismiss, Washington stated that, when she traveled to St. Croix, she intended to return to Texas when her project was complete, and to continue to live in Texas.


Washington sued Hovensa and Triangle in the District Court of the Virgin Islands on July 24, 2006. At the end of the discovery period that followed, both parties filed motions, the disposition of which Washington challenges on appeal. After failing to reach an agreement with defendants' counsel to extend expert discovery deadlines, Washington filed a Motion to Extend the Expert Deadlines on the basis that her vocationalist and economist did not yet have access to a hearing test that they needed in order to testify. The Magistrate Judge denied her motion, which was filed after the expiration of the deadline set by the District Court's Final Scheduling Order, finding that Washington failed to establish good cause for modifying the scheduling order under Fed.R.Civ.P. Rule 16(b)(4).

Washington also delayed in getting the Independent Medical Examination (" IME" ) at Triangle's expense that the parties agreed she would undergo. She canceled her first appointment and refused to have X-rays taken at the second. In response, Triangle filed an Emergency Motion for Physical Examination of Washington at her expense, which the Magistrate Judge granted. Washington then moved for reconsideration, which the Magistrate Judge denied.

After these motions were resolved, defendants filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction pursuant to Fed.R.Civ.P. Rule 12(h)(3), on the ground that Washington was domiciled in the V.I. when she filed her complaint, not in Texas, and, thus, that the District Court lacked jurisdiction over her cause of action. The District Court granted defendants' motion, finding it significant that " the center of [Washington's] business, domestic, and social life was in St. Croix," and that she was living and working in the V.I. when the complaint was filed. Washington v. HOVENSA, LLC, 2010 WL 1734775, at *2 (D.Vi. April 28, 2010). It placed particular emphasis on her expectation that her job in the V.I. would " continue indefinitely," relying on certain language in Krasnov v. Dinan, 465 F.2d 1298 (3d Cir.1972). Id. There, despite defendant's ties to Connecticut, we concluded that he was domiciled in Pennsylvania because he was to remain there indefinitely. See Krasnov, 465 F.2d at 1302-03. The District Court believed Washington's case to be analogous. It acknowledged that Washington owned an unoccupied house in Texas and had other ties to that state, but ultimately concluded that " her physical presence in the Virgin Islands, her intent to work indefinitely in St. Croix, and her business and social life there" pointed " decisively" towards the Virgin Islands as her domicile. Washington, 2010 WL 1734775, at *2.

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In determining Washington's domicile, the District Court determined that her own affidavit statement declaring her intention to return to and permanently reside in Texas " must be disregarded." It explained that " ‘ [o]ne's testimony as to his intention to establish a domicile, while entitled to full and fair consideration, is subject to the infirmity of any self-serving declaration, and it cannot prevail to establish domicile when it is contradicted or negatived by an inconsistent course of conduct; otherwise stated, actions speak louder than words.’ " Id. (quoting Korn v. Korn, 398 F.2d 689, 691 (3d Cir.1968)). Instead, the Court chose to look only to Washington's statements prior to defendants' motion to dismiss and her actions at the time of the filing of the complaint.

On appeal, Washington challenges the District Court's dismissal for lack of subject matter jurisdiction, arguing that, at the time she filed her complaint, she was on temporary assignment in the Virgin Islands for her Texas employer but that she remained a Texas domiciliary who intended to return to,...

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