Hendry v. Masonite Corporation

• Decision Date: 14 June 1972
• Docket Number: No. 71-2043,71-2005.,71-2043
• Citation: 455 F.2d 955
• Parties: Andre HENDRY, Plaintiff-Appellant, v. MASONITE CORPORATION and Robert E. Paul, Defendants-Appellees. Vander E. LEE, Plaintiff-Appellant, v. MASONITE CORPORATION and Robert E. Paul, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

455 F.2d 955 (1972)

Andre HENDRY, Plaintiff-Appellant, v.MASONITE CORPORATION and Robert E. Paul, Defendants-Appellees.

Vander E. LEE, Plaintiff-Appellant, v.MASONITE CORPORATION and Robert E. Paul, Defendants-Appellees.

Nos. 71-2043, 71-2005.

United States Court of Appeals, Fifth Circuit.

March 1, 1972.

Rehearing and Rehearing Denied June 14, 1972.

George D. Maxey, Laurel, Miss., Stanford Young, Waynesboro, Miss., for Andre Hendry, plaintiff-appellant.

Quitman Ross, Laurel, Miss., for Vander E. Lee, plaintiff-appellant.

Thomas A. Bell, Joe H. Daniel, Jackson, Miss., for defendants-appellees.

Before JOHN R. BROWN, Chief Judge, and INGRAHAM and RONEY, Circuit Judges.

Rehearing and Rehearing En Banc Denied June 14, 1972.

PER CURIAM:

The issue here is whether there was requisite diversity jurisdiction in the federal court when these cases were removed from a Mississippi state court.We hold that the district court erred in not finding that one of the defendants, Robert E. Paul, was a citizen of Mississippi at the time process was served on him, so that these cases must be reversed and remanded to the district court with instructions to remand them to the state court.

For purposes of federal diversity jurisdiction "citizenship" and "domicile" are synonymous.Stine v. Moore, 213 F.2d 446(5th Cir.1954).In determining one's "citizenship" or "domicile" statements of intent are entitled to little weight when in conflict with facts.Welsh v. American Surety Co. of New York, 186 F.2d 16(5th Cir.1951).

The facts concerning the citizenship of defendant Paul are these.Until May 1, 1970, he was a vice president of the Masonite Corporation and manager in charge of its Mississippi operations with offices in Laurel, Mississippi.On April 13, 1970, Paul accepted a company promotion to Chicago, Illinois, to become effective on May 1, 1970.There is no doubt that when he accepted that promotion he then decided to move to Illinois and become a citizen there at some time.Thereafter, he was personally served on June 2, 1970, in the Hendry case and on June 13, 1970, in the Lee case.The issue is whether he had carried out his intention to move his domicile to Illinois prior to those two dates.

The facts set forth in Paul's affidavit are as follows:

"My promotion was announced to all Masonite personnel on April 24, 1970, and it became effective May 1, 1970.John S. Harper, my successor in Laurel, was appointed on April 24, 1970 and assumed his duties there on May 6, 1970.I established my office in Chicago on April 23 and 24, 1970, and occupied it beginning April 29, 1970.Thereafter, I spent most of my working time in Chicago, and I spent part of the week of May 11, 1970 at the Towanda, Pennsylvania Plant.I spent some of my time advising with John S. Harper, helping him to effectively assume his new duties.As soon as John S. Harper arrived in Laurel, I gave up the executive offices that I had occupied, and when I had the occasion to be in Laurel, I used a small office in another location.

"On May 19, 1970, I moved into an apartment at 1445North State Parkway, Chicago, with most of my clothes and personal effects.I also moved a number of company files into said apartment, so that I could spend my spare time there reviewing them.

"About the time that I moved into said apartment, I began looking for a home in the Chicago area.On June 5, 1970, my wife and son came up to Chicago to assist in looking for a home.I purchased a home at 491 South Beverly Place, Lake Forest, Illinois, on July 15, 1970.My household furnishings were moved into my new home in early August, 1970.I signed a contract with Howard Johnson, Realtor, for sale of my home in Laurel, on May 18, 1970.

"Beginning May 1, 1970, my salary and travel expenses were borne by the home office."

Defendant and his wife personally voted in the primary election held in Jones County, Mississippi on June 2, 1970.

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