Gambelli v. US

• Decision Date: 06 October 1995
• Docket Number: Civ. A. No. 2:94cv868.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Eleanor GAMBELLI, Plaintiff, v. UNITED STATES of America, et al., Defendants.

904 F. Supp. 494

Eleanor GAMBELLI, Plaintiff, v. UNITED STATES of America, et al., Defendants.

Civ. A. No. 2:94cv868.

United States District Court, E.D. Virginia, Norfolk Division.

October 6, 1995.

William David Breit, Breit, Drescher & Breit, Norfolk, VA, for Eleanor Gambelli.

Anita Kay Henry, United States Attorney's Office, Norfolk, VA, for United States.

Lynn Ellen Watson, Thomas Charles Dawson, Jr., Heilig, McKenry, Fraim & Lollar, Norfolk, VA, for Nicholas Huntzinger and

State Farm Mutual Automobile Insurance Company.

MEMORANDUM OPINION AND ORDER

JACKSON, District Judge.

I. INTRODUCTION

Plaintiff Gambelli moves the Court for permission to amend its complaint to allege diversity jurisdiction. In arriving at the instant motion, the case has taken an irregular procedural route and the Court now summarizes below the steps leading to the pending motion.

Following oral argument and by order dated June 20, 1995, the Court dismissed the United States as a party to this action. In addition, at the request of Plaintiff, the Court dismissed the remaining Defendants on the ground that the Court no longer had jurisdiction. Although, Plaintiff requested the Court to remand the case to state court, the Court discovered that Plaintiff had not removed this case from state court. Therefore, the Court denied Plaintiff's motion for remand and simply dismissed the case. Plaintiff then moved this Court to rehear the issue of jurisdiction based upon 28 U.S.C. § 1332, arguing that there is diversity of citizenship amongst the parties and that the amount in controversy exceeds $50,000. The Court granted Plaintiff's motion to rehear and held a hearing on August 24, 1995.

At the hearing, counsel for the Plaintiff urged this Court to allow it to amend its pleadings to allege jurisdiction pursuant to 28 U.S.C. § 1332. Defendants opposed the motion to rehear and at the hearing argued that at the time of the accident, Defendants and Plaintiffs were all domiciled in Norfolk, VA, and thus the case should remain dismissed for want of federal jurisdiction.

For the reasons that follow, the Court DENIES Plaintiff's motion to amend the complaint, allowing to stand the Court's earlier dismissal of the case for want of jurisdiction.

II. LEGAL STANDARDS

A. Jurisdiction

A plaintiff seeking relief in federal court bears the burden of alleging and proving the facts conferring jurisdiction. Sligh v. Doe, 596 F.2d 1169, 1170 (4th Cir.1979) (citing McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1935); CHARLES A. WRIGHT, HANDBOOK OF THE LAW OF FEDERAL COURTS 15-16 (2d ed. 1970)). In invoking the jurisdiction of a federal court pursuant to 28 U.S.C. § 1332 a plaintiff must allege and prove that the parties are completely diverse in citizenship and that the amount in controversy exceeds $50,000. Moreover, if the defendant challenges the plaintiff's allegations of jurisdictional facts, "the plaintiff bears the burden of supporting the allegations by competent proof." Thomson v. Gaskill, et al., 315 U.S. 442, 446, 62 S.Ct. 673, 675, 86 L.Ed. 951 (1942) (citing McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 188, 56 S.Ct. 780, 784-85, 80 L.Ed. 1135 (1935)) (other citations omitted); Johnson v. General Motors Corp., 242 F.Supp. 778, 779 (E.D.Va. 1965) ("It is fundamental that where diversity is challenged, the plaintiff has the burden of establishing that diversity exists.").

Although the statute does not define citizenship, courts have held that it is the individual's domicile which is the state the individual considers her permanent home. Dyer v. Robinson, 853 F.Supp. 169, 172 (D.Md.1994). In the State of Virginia, "domicile is residence or physical presence accompanied by an intention to remain for an unlimited time." Smith v. Wellberg (In re Wellberg), 12 B.R. 48 (Bankr.E.D.Va.1981) (citing Smith v. Smith, 122 Va. 341, 94 S.E. 777 (1918); Layton v. Pribble, 200 Va. 405, 105 S.E.2d 864 (1958)). Domicile is distinguished from residence, in that an individual may have more than one residence but only one domicile. Commissioner of Internal Revenue v. Nubar, 185 F.2d 584, 587 (4th Cir.1950) (citing In re Newcomb's Estate, 192 N.Y. 238, 84 N.E. 950, 954 (1908)). Particularly in the case of members of the armed forces, "`a citizen of a state does not change his citizenship by entering the military service even though he is assigned to duties in another state or country, and regardless of the term of service, unless he indicates an intent to abandon such original domicile and adopt a new one.'" Deese v. Hundley, 232 F.Supp. 848, 850 (W.D.S.C. 1964) (emphasis added) (quoting Seegers v. Strzempek, 149 F.Supp. 35, 36 (D.C.Mich. 1957)). An individual may change his domicile instantly by taking up residence in another state with the intent to remain there. "He need not intend to remain permanently at the new domicile; it is enough that he intends to make the new state his home and that he has no present intention of going elsewhere." Miller v. Lee, 241 F.Supp. 19, 22 (W.D.S.C.1965) (citation omitted). Deese held, however, that a member of the military can not become a domiciliary of the state in which she is stationed if she lives on base. A change in domiciliary, according to Deese, requires an act of volition; residence at a duty station is in response to an order, not a voluntary act. Deese, 232 F.Supp. at 850.

Courts have examined a number of facts which indicate an intent by a member of the armed forces to change her domicile to the state in which she is serving. These factors include purchasing or renting a home off-base, registering one's car in that state, obtaining a driver's license in that state, joining community groups, and testifying to one's intention to remain in the state where stationed. Mizell v. Eli Lilly & Co., 526 F.Supp. 589, 592 (D.S.C.1981). See also Deese, 232 F.Supp. at 850 ("Once plaintiff moved from the Base of his own volition and then and there determined that he wished to be a domiciliary of Florida, a citizen of Florida he became."); Griffin v. Matthews, 310 F.Supp. 341, 343 (M.D.N.C.1969) ("In determining whether a party has intended to establish a domicile in the state to which he has moved, the court will look to such circumstances as his declarations, exercise of political rights, place of business, and other factors that aid in the determination of a state of mind.") (citing CHARLES A. WRIGHT, FEDERAL COURTS § 26 (2d ed. 1970)). More generally, the Fourth Circuit has held that barring evidence to the contrary, the logical conclusion in the case of an individual involved in a traffic accident driving a car with Virginia license plate is that the driver is a Virginia resident. Sligh, 595 F.2d at 1171.

B. Amending the Complaint

The Federal Rules of Civil Procedure govern the plaintiff's ability to amend his complaint. Rule 15(a) of the Federal Rules of Civil Procedure states:

A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.

FED.RULES CIV.P. 15(a). The disposition of a motion to amend is within the discretion of the Court. Murray v. State Farm Fire & Casualty Co., 870 F.Supp. 123, 125-26 (S.D.W.Va.1994) (citing Deasy v. Hill, 833 F.2d 38, 40 (4th Cir.1987)). Rule 15(a) "mandates a liberal reading of the rule's direction for `free' allowance: motions to amend are to be granted in the absence of a `declared reason' `such as undue delay, bad faith or dilatory motive ..., repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to opposing party ..., futility of amendment, etc.'" Ward Elecs. Serv., Inc. v. First Commercial Bank, 819 F.2d 496, 497 (4th Cir.1987) (citing and quoting Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962)).

III. ANALYSIS

Plaintiff filed a motion to rehear on June 27, 1995 pursuant to Rule 60 of the Federal Rules of Civil Procedure on the grounds that the Court has jurisdiction over the matter pursuant to 28 U.S.C. § 1332 and thus that the Court should not have dismissed the action. State Farm Mutual Automobile Insurance Company ("State Farm Insurance Co."), representing Defendant Huntzinger, opposed the motion to rehear because the complaint fails to allege diversity of citizenship. More specifically, the complaint does not allege the citizenship or domicile of the Plaintiff or the Defendants nor that the Defendants' domiciles or citizenship is diverse from that of the Plaintiff.

At the hearing on August 24, 1995, Plaintiff urged the Court to grant leave to amend the complaint to allege diversity of citizenship. Plaintiff's counsel argued that he had not alleged diversity of citizenship in the complaint because with the United States as a party, diversity was not necessary. Defendants naturally oppose Plaintiff's motion to amend the complaint.

A. Jurisdiction

Plaintiff has had several opportunities to carry her burden of establishing federal jurisdiction. The first opportunity occurred when the Court dismissed the United States as a Defendant. At the time of dismissal, Plaintiff stated that the Court did not have jurisdiction over the Defendants. (R. at 46.) Consequently, Plaintiff asked the Court to remand the case to state court and, as discussed above, the Court later denied that motion. Plaintiff then moved the Court for a hearing to reconsider the dismissal because of the alleged existence of diversity jurisdiction. The Court granted Plaintiff a hearing which it held on August 24, 1995.

Prior to the hearing, the Court...