946 F.2d 8 (1st Cir. 1991), 91-1276, Lundquist v. Precision Valley Aviation, Inc.

Docket Nº:91-1276.
Citation:946 F.2d 8
Party Name:Courtney J. LUNDQUIST, Plaintiff, Appellant, v. PRECISION VALLEY AVIATION, INC., et al., Defendants, Appellees.
Case Date:October 01, 1991
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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946 F.2d 8 (1st Cir. 1991)

Courtney J. LUNDQUIST, Plaintiff, Appellant,

v.

PRECISION VALLEY AVIATION, INC., et al., Defendants, Appellees.

No. 91-1276.

United States Court of Appeals, First Circuit

October 1, 1991

Submitted July 15, 1991.

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Richard L. Blumenthal and Silverman & Kudisch, Boston, Mass., on brief, for plaintiff, appellant.

Michael Kaplan and Preti, Flaherty, Beliveau & Pachios, Portland, Me., on brief, for defendants, appellees.

Before BREYER, Chief Judge, and SELYA and CYR, Circuit Judges.

PER CURIAM.

Plaintiff-appellant Courtney Lundquist filed an action on March 20, 1987 in the District of Massachusetts against defendants-appellees Precision Valley Aviation, Inc., Winnipesaukee Airlines, Inc., Walter Fawcett, and Susan Fawcett, to recover on promissory notes relating to a sale of stock in Winnipesaukee Airlines, Inc., by Lundquist to defendants. Lundquist's complaint alleged federal jurisdiction on the basis of diversity of citizenship under 28 U.S.C. § 1332. The complaint did not allege citizenship but did state that Lundquist resided in Arlington, Massachusetts.

On November 5, 1990, defendants filed a motion to dismiss for lack of subject matter jurisdiction on the ground that complete diversity of citizenship did not exist. The motion, which included affidavits and other evidentiary documents, alleged that Lundquist, like the defendants, was a citizen of New Hampshire. Lundquist filed an objection to the motion to dismiss, including affidavits, in which he alleged that he was a citizen of Florida. Lundquist asked that the district court permit him to amend his complaint to assert Florida citizenship.

The district court held oral argument on the motion to dismiss on December 6, 1990, and took the matter under advisement. At that hearing, when the court inquired whether it should schedule an evidentiary hearing on the matter, Lundquist's counsel opted to rest on his affidavits. On February

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19, 1991, the court heard further argument on the motion to dismiss. The court granted the motion in a brief February 22, 1991 order, finding a lack of complete diversity of citizenship. Lundquist appeals. We affirm.

Under 28 U.S.C. § 1332(a)(1), there is diversity of citizenship if the plaintiff is a "citizen" of a different state than all of the defendants. Sweeney v. Westvaco Co., 926 F.2d 29, 32-33, 41 (1st Cir.1991). "Citizenship" in a state is the equivalent of "domicile." Valedon Martinez v. Hospital Presbiteriano de la Comunidad, Inc., 806 F.2d 1128, 1132 (1st Cir.1986). Where a party changes domicile, "[d]omicile at the time suit is filed [here, March 20, 1987] is the test and jurisdiction once established is not lost by a subsequent change in citizenship." Id. (quoting Hawes v. Club Ecuestre El Comandante, 598 F.2d 698, 701 (1st Cir.1979)). Moreover, "the burden of proof is on the plaintiff to support allegations of jurisdiction with competent proof when the allegations are challenged by the defendant." O'Toole v. Arlington Trust Co., 681 F.2d 94, 98 (1st Cir.1982).

Defendants' primary evidence that Lundquist was a New Hampshire citizen was as follows: (1) that Lundquist owned real property in Melvin Village, New Hampshire and paid taxes on that property; (2) that Lundquist maintained a functioning telephone in Melvin Village; (3) that Lundquist had had a New Hampshire driver's license since 1986; (4) that Lundquist was registered to vote in New Hampshire from 1976 until at least 1990, and has actually voted in New Hampshire during that time; and (5) that Lundquist or Lundquist's wife stated his address to be in Melvin Village...

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