964 F.2d 48 (1st Cir. 1992), 91-1723, Bank One, Texas, N.A. v. Montle

Docket Nº:91-1723.
Citation:964 F.2d 48
Party Name:BANK ONE, TEXAS, N.A., Plaintiff, Appellee, v. Paul J. MONTLE, Defendant, Appellant.
Case Date:May 12, 1992
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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964 F.2d 48 (1st Cir. 1992)

BANK ONE, TEXAS, N.A., Plaintiff, Appellee,

v.

Paul J. MONTLE, Defendant, Appellant.

No. 91-1723.

United States Court of Appeals, First Circuit

May 12, 1992

Heard March 3, 1992.

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Robert Philip Hilson with whom Law Offices of Robert Philip Hilson, Professional Corp., Hingham, Mass., was on brief, for defendant, appellant.

John J. O'Connor with whom Molly H. Sherden and Peabody & Arnold, Boston, Mass., were on brief, for plaintiff, appellee.

Before TORRUELLA, Circuit Judge, CAMPBELL and WEIS, [*] Senior Circuit Judges.

LEVIN H. CAMPBELL, Senior Circuit Judge.

On July 30, 1990, plaintiff-appellee, Bank One, Texas, N.A. ("Bank One"), brought an action in the United States District Court for the District of Massachusetts against defendant-appellant, Paul J. Montle, to recover the deficiency due under a note executed by Montle and upon which he defaulted. Bank One's complaint alleged federal diversity jurisdiction on the basis of diversity of citizenship under 28 U.S.C. § 1332. While not specifically alleging "citizenship" the complaint stated that Bank One is a Texas financial lending institution with its principal place of business in Texas, and that defendant, Paul Montle, "is an individual residing at 147 Main Street, Hingham, Massachusetts 02043."

On December 10, 1990, Montle moved to dismiss for lack of subject matter jurisdiction on the grounds that diversity of citizenship was lacking. Montle alleged that as of July 30, 1990, the date Bank One filed its complaint, he was a domiciliary of Texas, not Massachusetts. Montle filed a supporting affidavit with his motion and Bank One filed affidavits in opposition to Montle's motion to dismiss. After a non-evidentiary hearing, held on March 28, 1991, the court denied Montle's motion. The court then granted Bank One's motion for summary judgment on its claims and Montle's counterclaims, explaining its ruling in a Memorandum and Order dated May 6, 1991. 764 F.Supp. 687. Montle appeals. We remand for further proceedings on the question of diversity of citizenship between the parties.

I.

Federal jurisdiction based on diversity of citizenship requires that the matter in controversy be between citizens of different states. 28 U.S.C. § 1332(a)(1). For purposes of diversity, a person is a citizen of the state in which he is domiciled. Lundquist v. Precision Valley Aviation, Inc., 946 F.2d 8, 10 (1st Cir.1991); Rodriguez-Diaz v. Sierra-Martinez, 853 F.2d 1027, 1029 (1st Cir.1988); Valedon Martinez v. Hospital Presbiteriano de la Comunidad, Inc., 806 F.2d 1128, 1132 (1st Cir.1986). "A person's domicile 'is the place where he has a true, fixed home and principal establishment, and to which, whenever he is absent he has the intention of returning.' " Rodriguez-Diaz, 853 F.2d at 1029 (quoting C. Wright, A. Miller & E. Cooper, 13B Federal Practice & Procedure § 3612, at 526 (1984)). Domicile is determined as of the time the suit is filed, and once diversity jurisdiction is established, it is not lost by a later change in domicile. Lundquist, 946 F.2d at 10; Valedon Martinez, 806 F.2d at 1132; Hawes v. Club Ecuestre El Comandante, 598 F.2d 698, 701 (1st Cir.1979).

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II.

In contesting Bank One's assertion of diversity jurisdiction, Montle stated that before the date the complaint was filed, July 30, 1990, he had changed his domicile from Massachusetts to Texas--the same state of which Bank One was a citizen. Generally, once challenged, "the party invoking subject matter jurisdiction [here Bank One] has the burden of proving by a preponderance of the evidence the facts supporting jurisdiction." James W. Moore et al., Moore's Federal Practice p 0.71[5.--1] (2d ed. 1985); see also Lundquist, 946 F.2d at 10 (plaintiff must support allegation of jurisdiction by "competent proof"); O'Toole v. Arlington Trust Co., 681 F.2d 94, 98 (1st Cir.1982); Hawes, 598 F.2d at 702; Lugo-Vina v. Pueblo International, Inc., 574 F.2d 41, 44 (1st Cir.1978). There is, however, a presumption in favor of continuing domicile, Hawes, 598 F.2d at 701; see also Mitchell v. United States, 88 U.S. (21 Wall.) 350, 353, 22 L.Ed. 584 (1875) ("domicile once acquired is presumed to continue until it is shown to have been changed"). As Montle had unquestionably been a Massachusetts domiciliary, he bore an initial burden of producing sufficient evidence to support his assertion that he had changed his domicile from Massachusetts to Texas before suit was filed. See Lew v. Moss, 797 F.2d 747 (9th Cir.1986); Slaughter v. Toye Bros. Yellow Cab Co., 359 F.2d 954, 955 (5th Cir.1966); Avins v. Hannum, 497 F.Supp. 930, 936 (E.D.Pa.1980). Montle needed to do two things to effect a change in his domicile: he had (1) to be present in the new domicile, and (2) to intend to remain there. Valedon, 806 F.2d at 1132; Hawes, 598 F.2d at 701; see also 1 Moore's Federal Practice, p 0.74[3.-1], at 780 (2d ed. 1991). The factors relevant to determining a party's intent include:

the place where civil and political rights are exercised, taxes paid, real and personal property (such as furniture and automobiles) located, driver's and other licenses obtained, bank accounts maintained, location of club and church membership and places of business or employment.

Lundquist, 946 F.2d at 11-12 (quoting 1 Moore's Federal Practice, p 0.74[3.-3], at 788). While no single factor is controlling, some courts have established a presumption of domicile in the state in which a party is registered to vote. 1 Moore's Federal Practice, p 0.74[3.-3] at 787. This court has not recognized such a presumption, but we have said that the place a person is registered to vote is a "weighty" factor in determining domicile. Lundquist, 946 F.2d at 12.

The district court found that Montle had met his initial burden of production. Montle presented his own affidavit, dated December 10, 1990, in which he averred the following: (1) he became a domiciliary of the State of Texas on June 26, 1990, the date he established residency there; (2) he was registered to vote in Texas as of July 25, 1990; (3) he maintains a Texas driver's license and his motor vehicles are registered in Texas; (4) he abandoned his Massachusetts residence in May, 1990 and he has lived and worked in Texas since May 31, 1990(5) both his children have been enrolled in Texas schools since May, 1990; (6) he has changed his mailing address for all purposes from Massachusetts to Texas; and (7) he intends to remain a permanent resident and domiciliary of Texas. Montle attached his Texas voter registration certificate, dated July 25, 1990, and his application for a Texas Driver's license, dated October 2, 1990.

Once Montle met his burden of production, the ultimate burden of proving diversity of citizenship rested with Bank One. In support of its position that Montle was not a Texas domiciliary at the time suit was filed, Bank One presented the affidavit of Devin L. Holum, a former commercial loan officer of the bank who corresponded with Montle. Holum averred that he had personal knowledge of Bank One's relationship with Montle; that he had not received any correspondence from Montle containing a return address located in Texas; and that on July 19, 1990, he received a letter from Montle with the typed return address of "147 Main Street, Hingham, MA 02043." A copy of the letter was attached to Holum's affidavit.

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Bank One also presented the affidavit of Richard Jope, Supervisor of Mail and Delivery at the Hingham, Massachusetts Post Office. Jope averred that on August 9, 1990, a change of address form signed by Montle was submitted to the post office. The form indicated that Montle's old address of "175 Derby Street, Hingham" was to be changed to the new location of "202 Glennville Court, Houston, Texas." Jope further averred that the change of address was to take effect on August 14, 1990, and mail began to be forwarded to Montle in Texas on that day.

Based on these written submissions, the district court found that, "although it is a close question, ... the Bank has satisfied its burden of proving that diversity of citizenship existed on July 30, 1990, the day it filed suit." In so concluding, the district court reasoned that "the Bank's evidence calls the credibility of defendant's sworn testimony deeply into question. The evidence as a whole indicates that Montle's intent to reside permanently in Texas hardened only in retrospect, after plaintiff had attached substantial assets in Massachusetts, and was conveniently timed only to defeat this court's jurisdiction."

III.

The district court's determination that Bank One had met its ultimate burden of proving that Montle was a Massachusetts domiciliary at the time suit was filed "is a mixed question of law and fact and as such may not be set aside unless clearly erroneous." Lundquist, 946 F.2d at 11; Valedon Martinez, 806 F.2d at 1132; O'Toole, 681 F.2d at 98; Hawes, 598 F.2d at 702. " '[A] finding is "clearly erroneous" when although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been committed.' " Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985) (citation omitted). This is a high hurdle. For the following reasons, however, we cannot sustain the district court's finding of diversity jurisdiction on the present record.

IV.

Montle's affidavit sufficed, as the district court acknowledged, to meet his initial burden of producing evidence overturning the presumption in favor of a continuing Massachusetts domicile on the critical July 30, 1990 date. Thereafter, the ultimate burden of persuasion fell upon Bank One to prove by "competent proof" and by a "preponderance of the evidence" that diversity of citizenship had then...

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