Crowley v. Glaze, 81-1490

• Decision Date: 20 June 1983
• Docket Number: No. 81-1490,81-1490
• Citation: 710 F.2d 676
• Parties: James H. CROWLEY, Plaintiff-Appellee, v. Richard D. GLAZE, d/b/a Tomichi Village Restaurant and Lounge, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 676

710 F.2d 676

James H. CROWLEY, Plaintiff-Appellee, v. Richard D. GLAZE, d/b/a Tomichi Village Restaurant and Lounge, Defendant-Appellant.

No. 81-1490.

United States Court of Appeals, Tenth Circuit.

June 20, 1983.

Rodney R. Patula of Pryor, Carney & Johnson, a Professional Corp., Englewood, Colo., for defendant-appellant.

Robert E. Kendig of Roath & Brega, P.C., Denver, Colo., for plaintiff-appellee.

Before McWILLIAMS, DOYLE, and SEYMOUR, Circuit Judges.

McWILLIAMS, Circuit Judge.

James H. Crowley brought a personal injury action in the United States District Court for the District of Colorado. He was severely injured when a vehicle in which he was riding as a passenger went off a road between Gunnison and Crested Butte, Colorado. Named as defendants in the proceeding were Robert Somers, the driver of the vehicle, and the owners and operators of two taverns. Crowley alleged that Somers was intoxicated when he drove off the road, and that the owners of the two taverns had caused Somer's state of intoxication. Somers eventually settled the claim against him, and he was dismissed from the proceeding. The two tavern owners filed separate answers denying liability.

Jurisdiction was based on diversity of citizenship, Crowley alleging that as of the time he filed suit he was a citizen of the State of Minnesota, and that the three defendants were citizens of the State of Colorado. 28 U.S.C. Sec. 1332(a). One of the tavern owners, Richard D. Glaze, filed a motion to dismiss, alleging that Crowley, the plaintiff, was, in fact, a citizen of Colorado at the time he filed the suit, and that accordingly the district court lacked subject matter jurisdiction because all parties, plaintiff as well as the three defendants, were citizens of Colorado. By agreement, Glaze's motion to dismiss for subject matter jurisdiction was presented to the district court on the basis of the pleadings, the depositions of Crowley and his mother, and written briefs. Based on such, the district court found that Crowley was a citizen of Minnesota when he filed the action, and, accordingly, denied Glaze's motion to dismiss. At the same time, the district court authorized an immediate appeal from his order of denial, and this Court later permitted an appeal pursuant to 28 U.S.C. Sec. 1292(b). We now affirm.

From the record we learn that the accident occurred on May 25, 1978, in Colorado, and that Crowley suffered severe head and back injuries as a result thereof. He was taken from the scene of the accident in a comatose condition to a hospital in Grand Junction, Colorado, where he remained until September 1978. Crowley had been reared in Minnesota, and his widowed mother and other members of his family resided in and around Minneapolis, Minnesota. Accordingly, in September 1978, Crowley was flown back to Minneapolis and admitted to the Sister Kinney Institute in that city. He remained in that facility until December, 1978, when he was transferred to the Prospect Nursing Home in Minneapolis. Sometime later, he left the nursing home and moved to his mother's residence in Minneapolis, where he was residing when he filed the present action on September 17, 1979, and where he is still residing, so far as we are advised.

As indicated, Crowley's home state is Minnesota. It is apparently agreed, however, that at the time of the accident, he was a citizen of Colorado, having resided several years in the Gunnison area where he had been employed on a ski patrol. Four months after the accident Crowley returned to Minnesota, where he resided at the time he commenced this action, approximately one year after his return to Minnesota.

On appeal, Glaze's position is two-fold: (1) Because of brain injury, Crowley was unable to form any intent to change his citizenship from Colorado to Minnesota; and (2) if Crowley had the mental ability to ideate, he did not, at the time he filed this suit, have an intent to remain in Minnesota either permanently, or indefinitely. The district court, based primarily on a reading of the depositions of Crowley and his mother, found that Crowley was mentally able to form an intent, and that his intent at the time he filed the suit was to remain in Minnesota...