Dakuras v. Edwards
| Decision Date | 14 November 2002 |
| Docket Number | No. 02-1563.,02-1563. |
| Citation | 312 F.3d 256 |
| Parties | James DAKURAS, Sr., Plaintiff-Appellant, v. Robert EDWARDS, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
James Dakuras, Sr. (submitted), Chicago, IL, pro se.
James M. Carlson, submitted, Ungaretti & Harris, Chicago, IL, for Defendants-Appellees.
Before BAUER, POSNER, and DIANE P. WOOD, Circuit Judges.
The district court dismissed this diversity fraud suit on the ground that the key defendant was a citizen of the same state as the plaintiff, namely Illinois. According to allegations of the complaint that for purposes of this appeal we are required to treat as true, repressing our natural skepticism, the plaintiff, James Dakuras, and a defendant, Ella Calder, who was rightly deemed an indispensable party by the district judge, lived together in Illinois in a simulacrum of marriage. After Calder had a stroke, her relatives, who are Ohioans (and who are the other defendants in the case), deceived her into moving to Ohio, where they had her declared incompetent. They placed her in an assisted-living facility there and are preventing Dakuras from having any contact with her. When they removed her from Illinois to Ohio they took valuable property owned by Dakuras and they refuse to return it.
The district court pounced on Dakuras's claim that Calder had been deceived into relocating to Ohio, and concluded that he had pleaded himself out of federal court. Citizenship for purposes of the diversity jurisdiction is domicile, and domicile is the place one intends to remain, so involuntary removal does not change one's domicile, as we had occasion to note just recently with respect to prisoners. Bontkowski v. Smith, 305 F.3d 757 (7th Cir.2002). Had Calder been domiciled in Illinois but imprisoned in Ohio, she would be a citizen of Illinois (unless she had decided she didn't want to go back to Illinois when she was released), not of Ohio; and the judge reasoned that if she was lured to Ohio this is the same as her having been forcibly removed there. No doubt it would be the same thing, though we can't find any cases on the point, if that were all there was to the matter. But the defendants concede and indeed emphasize that Calder is incompetent; it is they, as her guardians, who have decided that she shall remain in Ohio; and so we must decide whether a guardian, unlike the officials of the criminal justice system, can change a ward's domicile, an issue on which other courts are divided — compare Rishell v. Jane Phillips Episcopal Memorial Medical Center, 12 F.3d 171, 174 (10th Cir.1993), which answers "yes," with Foster v. Carlin, 200 F.2d 943, 946 (4th Cir. 1952); Long v. Sasser, 91 F.3d 645, 647 (4th Cir.1996); and Juvelis by Juvelis v. Snider, 68 F.3d 648, 655-56 (3d Cir.1995), which answer "no" (though Juvelis also, and inconsistently, cites Rishell with apparent approval, id. at 655) — and to which we have not spoken.
We think the better view is that a guardian can change his or her ward's domicile, in just the same way that a parent (or, for that matter, a guardian) can change a child's domicile — though there is a division of authority on that question too, with Ziady v. Curley, 396 F.2d 873, 875 (4th Cir.1968), and In re Hall's Guardianship, 235 N.C. 697, 71 S.E.2d 140, 144 (1952), holding that the parent can change the child's domicile, and Dunlap by Wells v. Buchanan, 741 F.2d 165, 167-69 (8th Cir.1984), implying that he cannot. A prisoner forcibly removed from the state where he has been living and wants to continue to live and to which he intends to return when he is released from prison has no significant contact with or commitment to the state of his imprisonment, a strictly transient and undesired abode. It is different with a person who, whether because of youth or incompetency, is not able to make a responsible determination of where to live. The responsibility for making the essential life choices of children and wards is vested not in them but in their parents or guardians, and we cannot see why the choice of domicile should not be treated as one of those life choices. As the court pointedly remarked in the Rishell case,...
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