Frett-Smith v. Vanterpool

• Decision Date: 03 January 2008
• Docket Number: No. 06-4169.,06-4169.
• Citation: 511 F.3d 396
• Court: U.S. Court of Appeals — Third Circuit
• Parties: Merlene FRETT-SMITH, Appellant v. Joey VANTERPOOL; Cheryl Vanterpool, individually and d/b/a Vanterpool Enterprises Inc.; Builders Emporium, Inc.

511 F.3d 396

Merlene FRETT-SMITH, Appellant v. Joey VANTERPOOL; Cheryl Vanterpool, individually and d/b/a Vanterpool Enterprises Inc.; Builders Emporium, Inc.

No. 06-4169.

United States Court of Appeals, Third Circuit.

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) December 10, 2007.

Filed: January 3, 2008.

Francis E. Jackson, Jr., Charlotte Amalie, St. Thomas USVI, for Appellant.

David J. Cattie, Ogletree, Deakins, Nash, Smoak & Stewart, Stephen A. Brusch, Charlotte Amalie, St. Thomas USVI, for Appellees.

Before: SMITH, NYGAARD, and ROTH, Circuit Judges.

OPINION

SMITH, Circuit Judge.

Merlene Frett-Smith ("Smith") appeals from the judgment of the District Court of the Virgin Islands granting the post-trial motion to vacate the jury verdict and to dismiss the complaint for lack of subject matter jurisdiction filed by defendants Joey and Cheryl Vanterpool, individually and through Vanterpool Enterprises Inc., and Builder's Emporium, Inc. (hereinafter collectively referred to as the "Vanterpools"). Because the parties were not diverse as required under 28 U.S.C. § 1332,¹ we will affirm the judgment of the District Court.

I. Factual Background and Procedural History

Smith was born in Tortola, British Virgin Islands ("B.V.I."), and spent much of her childhood in St. Thomas, U.S. Virgin Islands ("U.S.V.I."). She became a naturalized United States citizen in 1975.² After high school, Smith attended college in Hampton, Virginia, and thereafter moved to Miami. In 1983, Smith returned to the U.S.V.I. where she married and had a son. Her marriage ended in 1986, and Smith moved to Atlanta and then to Miami. In 1990, Smith moved back to the U.S.V.I. where she worked for the Virgin Islands Department of Education as a teacher. On August 18, 1998, a light fixture, installed by the Vanterpools, fell on Smith while she was working at Charlotte Amalie High School in the U.S.V.I. Smith stated in her affidavit that she traveled to Florida in December of 1998 for treatment related to her injuries and it was then that she considered Florida her home, intending to remain there. Smith then returned to the U.S.V.I. in 1999, but may have spent part of the year in Florida. In December of 1999, Smith moved to Tortola, B.V.I., to live with her brother. She filed this lawsuit against the Vanterpools on May 3, 2000, while living in Tortola.

Smith filed suit in the District Court of the Virgin Islands. She asserted that there was alienage jurisdiction under 28 U.S.C. § 1332(a)(2) and alleged that she was a citizen and resident of Tortola, B.V.I., and that the Vanterpools were citizens and residents of the U.S.V.I. The District Court thereby exercised jurisdiction over the action. According to their brief submitted to this Court, the Vanterpools moved prior to trial to preclude Smith's expert economist from testifying. Counsel grounded his objection on the fact that the economist was basing his life expectancy calculations on the U.S. life expectancy chart. The Vanterpools contended that this table could not be used respecting Smith, as she was a citizen of the B.V.I. In response to the motion, Smith stated that she was a citizen of the United States residing in the U.S.V.I. The case proceeded to trial and a jury returned a verdict in Smith's favor in an amount exceeding $1.2 million, and the District Court entered judgment on April 18, 2005.

On the basis of this new information regarding Smith's citizenship, the Vanterpools filed a timely post-trial motion to vacate the jury verdict and dismiss the complaint for lack of subject matter jurisdiction.³ In their supporting memorandum the Vanterpools argued that because Smith was a United States citizen living abroad in the B.V.I., she was not entitled to utilize § 1332(a)(2), even if she was also a citizen of that foreign nation. In response, Smith contended that even if the Vanterpools' position was correct, the District Court possessed diversity jurisdiction pursuant to 28 U.S.C. § 1332(a)(1) because she was a citizen of Florida when she filed the Complaint.⁴ See, e.g., Yancoskie v. Del. River Port Auth., 528 F.2d 722, 726 (3d Cir.1975) (acknowledging that an alternate basis for federal jurisdiction may be considered if there is a defect in the initial basis for jurisdiction). The District Court ordered Smith to identify and produce objective facts tending to show that she had established domicile in Florida prior to and up to the time the action was filed. Ultimately, the District Court concluded that these "facts" were insufficient to prove domicile in Florida and found that Smith was either a resident of Tortola, B.V.I., or a domiciliary of the U.S.V.I. at the time the complaint was filed, and granted the Vanterpools' motion.

II. Standard of Review

We exercise jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and our review of a dismissal for lack of subject matter jurisdiction is plenary. See Gould Elecs., Inc. v. United States, 220 F.3d 169, 176 (3d Cir.2000). However, "[h]istorical or chronological data which underline a court's determination of diversity jurisdiction are factual in nature, and, on review, are subject to the clearly erroneous rule." Krasnov v. Dinan, 465 F.2d 1298, 1299-1300 (3d Cir.1972) (internal citations omitted). Thus, this Court will not disturb the judgment of the District Court unless we are "left with the definite and firm conviction that a mistake has been committed" in the District Court's fact-finding: namely, the finding that Smith was not "domiciled" in Florida when she commenced her negligence action. See Korn v. Korn, 398 F.2d 689, 691 (3d Cir.1968) (citing United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)).

III. Merits

The first issue we address on appeal is whether Smith can invoke alienage jurisdiction under 28 U.S.C. § 1332(a)(2) if she in fact possesses dual citizenship.⁵ This issue is one of first impression for our Court.

A number of our sister Courts of Appeals have already held that for a dual national citizen, only the American nationality is relevant for purposes of diversity under 28 U.S.C. § 1332. These courts agree that "diversity jurisdiction may be properly invoked only when a dual citizen's domicile, and thus his citizenship, is in a state diverse from that of adverse parties." Coury v. Prot, 85 F.3d 244, 250 (5th Cir. 1996) (citing Action S.A. v. Marc Rich & Co., 951 F.2d 504 (2d Cir.1991); Sadat v. Mertes, 615 F.2d 1176 (7th Cir.1980); Mutuelles Unies v. Kroll & Linstrom, 957 F.2d 707 (9th Cir.1992); Las Vistas Villas, S.A. v. Petersen, 778 F.Supp. 1202 (D.C.Fla.1991), aff'd, 13 F.3d 409 (11th Cir. 1994)). Thus, an American national, living abroad, cannot sue or be sued in federal court under § 1332(a)(2). The only way that an American national, living abroad, can sue under § 1332 is under § 1332(a)(1) if that national is a citizen, i.e., domiciled, in one of the fifty U.S. states. Coury, 85 F.3d at 248.⁶ We find the Fifth Circuit's reasoning in Coury v. Prot particularly persuasive:

the dual citizen should not be allowed to invoke alienage jurisdiction because this would give him an advantage not enjoyed by native-born American citizens . . . . [T]he major purpose of alienage jurisdiction is to promote international relations by assuring other countries that litigation involving their nationals will be treated at the national level, and alienage jurisdiction is intended to allow foreign subjects to avoid real or perceived bias in the state courts—a justification that should not be available to the dual citizen who is an American.

Id. at 250 (citing 1 Moore's Federal Practice § 0.75[4]) (internal citations omitted).

We agree with the courts that have already decided this issue and hold that for purposes of diversity jurisdiction, only the American nationality of a dual national is recognized. Because Smith is a United States citizen, her initial reliance on alienage jurisdiction was in error. Furthermore, if Smith was domiciled abroad at the time her Complaint was filed, she would not be a citizen of any state and diversity jurisdiction under § 1332(a)(1) would also fail. Only if Smith was domiciled in a particular state of the United States at the time the suit was filed, and that state was diverse from that of the Vanterpools, would subject matter jurisdiction be present.

The second issue presented by this appeal, then, is whether the District Court committed clear error when it found that Smith was not a domiciliary of Florida for purposes of invoking diversity jurisdiction under § 1332(a)(1). We accept the ultimate factual determination of the fact-finder unless that determination is either "(1) completely devoid of minimum evidentiary support displaying some hue of credibility, or (2) bears no rational relationship to the supportive evidentiary data." Krasnov v. Dinan, 465 F.2d 1298, 1302 (3d Cir.1972). Our independent review of the record reveals that the District Court's finding that Smith was not a domiciliary of Florida when she commenced her action was not clearly erroneous. Thus, the parties were not diverse for purposes of 28 U.S.C. § 1332(a)(1).

Smith argues that she changed her domicile from the U.S.V.I. to Florida in December of 1998 when she traveled to Florida for treatment related to her injury. In the alternative, Smith claims that she never abandoned her Florida domicile in 1990. A party's citizenship for purposes of subject matter jurisdiction is synonymous with domicile. McCann v. Newman Irrevocable Trust, 458 F.3d 281, 286 (3d Cir. 2006). Domicile is an individual's "true, fixed and permanent home and place of habitation. It is the place to which, whenever he is absent, he has the intention of returning." Id. (citing Vlandis v. Kline, 412 U.S. 441, 454, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973)). Therefore, the District Court correctly recognized that domicile is established by a party's physical presence in a state with an intent to remain...