Bair v. Peck, 87-1177-C.

• Decision Date: 08 May 1990
• Docket Number: No. 87-1177-C.,87-1177-C.
• Parties: Stephen BAIR, Plaintiff, v. Roger G. PECK, M.D.; Perry Smith, M.D.; Great Bend Internists, P.A.; and Alderson, Schuckman, and Smith, P.A.
• Court: U.S. District Court — District of Kansas

738 F. Supp. 1354

Stephen BAIR, Plaintiff, v. Roger G. PECK, M.D.; Perry Smith, M.D.; Great Bend Internists, P.A.; and Alderson, Schuckman, and Smith, P.A.

No. 87-1177-C.

United States District Court, D. Kansas.

May 8, 1990.

Casey R. Law, Turner & Boisseau, Great Bend, Kan., for plaintiff.

James Z. Hernandez, Wichita, Kan., for Peck and Smith.

MEMORANDUM AND ORDER

CROW, District Judge.

The case comes before the court on the defendants' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction and the defendants Great Bend Internists', P.A. and Alderson, Schuckman & Smith's, P.A. motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c), or in the alternative, for summary judgment pursuant to Fed.R. Civ.P. 56. Plaintiff brings this medical malpractice action asserting the court has subject matter jurisdiction on the basis of diversity of citizenship as set forth at 28 U.S.C. § 1332. If, as the plaintiff alleges, he was a citizen of Colorado and the defendants were citizens of Kansas at the time this suit was filed, then complete diversity between the plaintiff and each of the defendants would exist as required by statute, 28 U.S.C. § 1332(a)(1), and case law, Straw-bridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806).

For purposes of diversity jurisdiction, one is considered a citizen of the state in which he is domiciled. Crowley v. Glaze, 710 F.2d 676, 678 (10th Cir.1983). In this context, citizenship and domicile are synonymous, Freeman v. Northwest Acceptance Corp., 754 F.2d 553, 555 (5th Cir. 1985). But domicile and residence are not necessarily synonymous, Mississippi Choctaw v. Holyfield, 490 U.S. ___, ___, 109 S.Ct. 1597, 1607-1608, 104 L.Ed.2d 29, 46 (1989), for domicile is the combination of physical presence in a place (residence) and a certain state of mind, that is, the intent to remain there. Id. There is no minimum period of residence required. Morris v. Gilmer, 129 U.S. 315, 328, 9 S.Ct. 289, 293, 32 L.Ed. 690 (1889). The requisite intention is to remain at that place for an unlimited or indefinite period of time. Freeman, 754 F.2d at 555; Crowley, 710 F.2d at 678. Residence and intent are inextricable elements of domicile. If unaccompanied by the necessary intent, residence alone is not determinative of citizenship. Gilbert v. David, 235 U.S. 561, 569-70, 35 S.Ct. 164, 166-67, 59 L.Ed. 360 (1914). For the same reason, the "mere mental fixing of citizenship is not sufficient." Walden v. Broce Construction Company, 357 F.2d 242, 245 (10th Cir.1966).

The determination of diversity jurisdiction is generally made from the complaint. Whitelock v. Leatherman, 460 F.2d 507, 514 (10th Cir.1972). When the allegations are challenged, the party asserting diversity jurisdiction has the burden of proving them by a preponderance of the evidence. Mid-Continent Pipe Line Co. v. Whiteley, 116 F.2d 871, 873 (10th Cir.1941); see McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936). This raises mixed question of law and fact for the trial court to decide. Crowley, 710 F.2d at 678. In determining diversity jurisdiction, domicile is assessed as of the date the complaint is filed. Johnston v. Cordell National Bank, 421 F.2d 1310, 1311 (10th Cir.1970). If established at this critical time, it is immaterial that diversity is lost because of a subsequent change in domicile. Smith v. Sperling, 354 U.S. 91, 93 n. 1, 77 S.Ct. 1112, 1113 n. 1, 1 L.Ed.2d 1205 (1957).

A presumption has been recognized favoring an established domicile over a newly acquired one. Lew v. Moss, 797 F.2d 747, 751 (9th Cir.1986); Abercrombie v. Sigler, No. 87-2358-S at 3, 1988 WL 212479 (D.Kan. Aug. 25, 1988). At the same time, courts have allowed a presumption of domicile upon proof of residency. Kelleam v. Maryland Casualty Co. of Baltimore, 112 F.2d 940, 943 (10th Cir.1940), rev'd on other grounds, 312 U.S. 377, 61 S.Ct. 595, 85 L.Ed. 899 (1941). These presumptions only shift the burden of going forward with the evidence as the ultimate burden of proof always remains with the party asserting diversity jurisdiction. Lew, 797 F.2d at 751. Because the facts of the case sub judice meet both of these countervailing presumptions, their impact is limited with the focus instead directed to whether the plaintiff is able to sustain his ultimate burden of proof.

When the plaintiff has recently changed residence before filing suit, the courts have applied some additional rules in their determination. The question of a new domicile is determined by the same two factors of residence and intent to remain indefinitely, but the intent need not be to remain permanently. See Crowley, 710 F.2d at 678. It is enough to have a "floating intention" to stay indefinitely and also have the general desire to return to the former domicile at some undetermined point of time. Crowley, 710 F.2d at 678. It is not sufficient to have the existing intention to return upon the happening of a reasonably foreseeable event. Gates v. Commissioner of Internal Revenue, 199 F.2d 291, 294 (10th Cir.1952). Consequently, it is often presumed a student attending an out-of-state university intends to return to his or her home state upon completion of studies. Bradley v. Zissimos, 721 F.Supp. 738, 939 n. 3 (E.D.Pa.1989); Lyons v. Salve Regina College, 422 F.Supp. 1354, 1357 (D.R.I.1976), rev'd on other grounds, 565 F.2d 200 (1st Cir.1977), cert. denied, 435 U.S. 971, 98 S.Ct. 1611, 56 L.Ed.2d 62 (1978). "It is in the light of this presumption that courts evaluate evidence which might, standing alone, indicate a contrary intention." Bradley, 721 F.Supp. at 739 n. 3 (citations omitted). Under the circumstances of a recent change in residence, courts have often looked to objective indicia of intent, such as the place of employment, driver's license, automobile registration, bank accounts, tax payments, location of personal property, and voting practices. Lew v. Moss, 797 F.2d at 750; Abbott v. United Venture Capital, Inc., 718 F.Supp. 823, 826 (D.Nev.1988). Statements of intent are accorded minimal weight relative to these objective factors. Freeman v. Northwest Acceptance Corp., 754 F.2d at 556.

Plaintiff was born and raised in Kansas. He attended the University of Kansas for the fall semester of 1985 until his illness in November of that year. He returned to the university in April of 1986. During the summer of 1986, plaintiff lived with his family in Great Bend, Kansas. When fall came, he enrolled in and attended the University of Kansas. In December of 1986, plaintiff obtained a Colorado driver's license using the address of his parent's friends who lived in Colorado. Plaintiff never lived at that address but used it to qualify for in-state tuition at the University of Colorado.

Upon his own decision, plaintiff moved to Boulder, Colorado and attended the University of Colorado in January of 1987. He states as the reasons for his decision—the quality of that university's physics program and his long-time wish to live in Colorado. Plaintiff took all of his personal belongings with him to Colorado. Plaintiff filed his complaint in this action on March 30, 1987. From January to May of 1987, plaintiff attended the university, lived in university housing, and was employed by the university. Plaintiff then moved to 943 East 15th Street, Boulder, Colorado where he lived until August of 1987. He worked for Carico International during June and July of 1987.

Plaintiff then moved to Keystone, Colorado and began working for the ski resort instead of going back to the University of Colorado. He represented to Keystone that his permanent address was his parent's home in Great Bend, Kansas, and he listed the same address on his employee's withholding allowance certificate prepared for federal income tax purposes. Anticipating a move because of his job at Keystone and desiring that important mail would always reach him wherever he might reside, plaintiff made his parent's address his permanent address for employment and tax purposes. In November of 1987, he started work at the Wendy's store in Dillon, Colorado and lived there in his own apartment. Plaintiff was registered to vote in Colorado.

After seriously injuring his knee in a skiing accident in January of 1988, plaintiff decided to have the necessary knee surgery performed by the same physician in Wichita, Kansas who had performed a similar operation on his sister's knee a year earlier. Plaintiff recuperated from the knee surgery at his parent's home in Great Bend, Kansas. His personal belongings were moved back to Great Bend sometime in February of 1988. For the 1987 tax year, plaintiff filed a Colorado state tax return as a resident of Colorado.

In June of 1988, plaintiff stayed for two weeks with some friends in Lawrence, Kansas, while he worked in Kansas City, Missouri and looked for a...