Krasnov v. Dinan

Decision Date07 September 1972
Docket NumberNo. 72-1337.,72-1337.
Citation465 F.2d 1298
PartiesGeorge S. KRASNOV et al., Appellants, v. Brendan DINAN.
CourtU.S. Court of Appeals — Third Circuit

Donald J. Farage, Farage & Shrager, Philadelphia, Pa., for appellants.

John R. McConnell, Morgan, Lewis & Bockius, Philadelphia, Pa., (Thomas C. Sadler, Jr., Philadelphia, Pa., on the brief), for appellee.

Before ALDISERT, MAX ROSENN, and HUNTER, Circuit Judges.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

This appeal requires us to decide whether plaintiffs sustained the burden of proving diversity of citizenship of the parties in order to confer federal jurisdiction. Specific to our inquiry is a review of the district court's finding that because defendant intended to remain at his Pennsylvania residence indefinitely, he must be considered a citizen of that state, 333 F.Supp. 751, 339 F.Supp. 1357.

After the jurisdictional allegation was traversed, the district court considered evidence produced both by depositions, Tanzymore v. Bethlehem Steel Corp., 457 F.2d 1320 (3d Cir. 1972), and at an evidentiary hearing, and concluded that defendant, a member of a religious order, was a citizen of Pennsylvania. Because plaintiffs were also citizens of that state, and because federal jurisdiction was alleged solely on diversity, 28 U.S.C. § 1332, judgment was entered in favor of the defendant.

The factual complex presented to the district court was unusual, but the controlling legal principles are well settled. Historical or chronological data which underline a court's determination of diversity jurisdiction are factual in nature, McSparran v. Weist, 402 F.2d 867 (3d Cir. 1968), cert. den. sub nom., Fritzinger v. Weist, 395 U.S. 903, 89 S. Ct. 1739, 23 L.Ed.2d 217 (1969), and, on review, are subject to the clearly erroneous rule. F.R.Civ.P. Rule 52(a), 28 U.S.C.; Hoffman v. Lenyo, 433 F.2d 657 (3d Cir. 1970); Joyce v. Seigel, 429 F. 2d 128 (3d Cir. 1970); 9 Wright & Miller, Federal Practice and Procedure: Civil § 2589, at 759 (1971). See also Walden v. Broce Constr. Co., 357 F.2d 242 (10th Cir. 1966).

Where the ultimate conclusion is a determination of a party's citizenship, the requisite intention to establish domicile, and therefore citizenship, is a factual finding. Gallagher v. Philadelphia Transp. Co., 185 F.2d 543 (3d Cir. 1950). To find this intention, the court must find "an actual, not pretended, change of domicile; in other words, the removal must be `a real one, animo manendi, and not merely ostensible.' Case v. Clarke, 5 Mason, 70. The intention and the act must concur in order to effect such a change of domicile as constitutes a change of citizenship." Morris v. Gilmer, 129 U.S. 315, 328, 9 S.Ct. 289, 293, 32 L.Ed. 690 (1889). Professor Wright has neatly synthesized the doctrine: "A citizen of the United States can change his domicile instantly. To do so, two elements are necessary. He must take up residence at the new domicile, and he must intend to remain there. Neither the physical presence nor the intention to remain is alone sufficient." Wright, Federal Courts § 26, at 86 (2d ed. 1970).1Cf., the lesser degree of proof required to establish status of "resident." Government of the Virgin Islands ex rel. Bodin v. Brathwaite, 459 F.2d 543 (3d Cir. 1972). It is the citizenship of the parties at the time the action is commenced which is controlling. Brough v. Strathmann Supply Co., 358 F.2d 374 (3d Cir. 1966). One domiciled in a state when a suit is begun is "a citizen of that state within the meaning of the Constitution, art. 3, § 2, and the Judicial Code . . . (Gassies v. Ballon, 6 Pet. 761, 8 L.Ed. 573; Boyd v. Nebraska, 143 U.S. 135, 161, 36 L.Ed. 103, 109, 12 S.Ct.Rp. 375; Minor v. Happersett, 21 Wall. 162, 22 L.Ed. 627.) . . ." Williamson v. Osenton, 232 U.S. 619, 624, 34 S.Ct. 442, 58 L.Ed. 758 (1914); Pemberton v. Colonna, 290 F.2d 220 (3d Cir. 1961). Where one lives is prima facie evidence of domicile, District of Columbia v. Murphy, 314 U.S. 441, 62 S.Ct. 303, 86 L.Ed. 329 (1941), but mere residency in a state is insufficient for purposes of diversity. Sun Printing and Publishing Ass'n v. Edwards, 194 U.S. 377, 24 S.Ct. 696, 48 L. Ed. 1027 (1904). The fact of residency must be coupled with a finding of intent to remain indefinitely. Proof of intent to remain permanently is not the test. "If the new state is to be one's home for an indefinite period of time, he has acquired a new domicile." Gallagher v. Philadelphia Transp. Co., supra, 185 F.2d at 546. Where jurisdictional allegations are traversed, as here, "the burden of showing . . . that the federal court has jurisdiction rests upon the complainants." Gibbs v. Buck, 307 U.S. 66, 72, 59 S.Ct. 725, 729, 83 L.Ed. 1111 (1939); Tanzymore v. Bethlehem Steel Corp., supra; Nelson v. Keefer, 451 F.2d 289 (3d Cir. 1971). "In determining whether a party has intended to establish a domicile in the state to which he has moved, the factfinder will look to such circumstances as his declarations, exercise of political rights, payment of personal taxes, house of residence, and place of business." Wright Federal Courts § 26, at 87 (2d ed. 1970); Mitchell v. United States, 88 U.S. (21 Wall.) 350, 353, 22 L.Ed. 584 (1874).

Therefore, having averred that Brendan Dinan was a "citizen and domiciliary of the State of Connecticut and/or New York," plaintiffs were obliged to support the allegation of proof once the defendant filed an answer alleging that Dinan was a "citizen and domiciliary of the Commonwealth of Pennsylvania."

Against the backdrop of these principles, we turn to the evidence adduced by deposition and testimony before the district court. Crucial to these proceedings was the determination of citizenship of Dinan on March 27, 1971, the date the complaint was filed. Dinan described himself as a religious brother, a member of a Roman Catholic semi-monastic teaching order. He took religious vows in 1961 including one to go wherever the Superior General of his Order wished to send him. At various times he was transferred to Indiana, Texas, and New York. In January, 1962, he was transferred to Connecticut where he remained until he went to Bethelem, Pennsylvania, in August, 1968, to take up teaching duties at Bethlehem Catholic High School. Consistent with vows, Dinan owned no property other than clothing contained in a foot locker which accompanied him to Pennsylvania.

When he went to Connecticut, he possessed a Rhode Island driver's license, which he retained and renewed. In addition, he obtained and renewed one from Connecticut, even while residing in Pennsylvania. At no time did he apply for a Pennsylvania license. On application for renewal of his Connecticut license on December 12, 1968, he listed Bethlehem, Pennsylvania, as his residence. While residing in Pennsylvania, Dinan voted in Connecticut elections by absentee ballot.

When asked for his "official residence" at his first deposition, he responded: "We use New Haven, Connecticut, which is the provincial administration or central office. . . . That is where I vote. It is our central headquarters, because we are moving around somewhat frequently, and you never know how long."

When a second deposition was taken, Dinan was no longer a resident of Pennsylvania, but was teaching in Brooklyn, New York. He stated that at the time he was stationed there he intended to make Brooklyn his home. When asked why, he replied: "Well, it was my home. I worked there. This is our thinking and you are part of the community, the congregation is. When you go to an area—when you are assigned to an area, this is your home and you become a native." He testified also that when he was in Connecticut he intended to make that state his home for the same reason. Asked how long he intended to make it his home, he responded: "Forever, I mean, as long as you have no order. I can't say that I would be there a month or fifty years. This is my home."

Finally, he was asked about Pennsylvania:

"Q. At the time you were assigned to Bethlehem Catholic High School was there any stipulated term? Were you told how long you would be there?

"A. No "Q. And where did you intend to make your home upon assignment to Pennsylvania?

"A. Bethlehem.

"Q. Now at the time you were assigned to and living in Pennsylvania did you have any intention of leaving Pennsylvania at any time and going back to live with your mother?

"A. Absolutely not."

On balance, it becomes apparent that the factors bearing on the issue of Dinan's domicile most favorable to plaintiffs' theory were: (1) Dinan's statement at the first deposition that his "official residence" was Connecticut; (2) his continuing to vote in Connecticut by absentee ballot while living in Pennsylvania and (3) his continuing to use a Connecticut driver's license and a failure to apply for one in Pennsylvania.

Plaintiffs vigorously present the argument that Dinan has but one domicile, in a state outside of Pennsylvania, probably in Connecticut, the self-styled "official residence" of the religious order, and that any teaching assignment elsewhere was similar to a compelled physical presence elsewhere, much the same as the transfer of soldiers whose movements are the result of military orders and not free choice. He would have us invoke the military servicemen principle enunciated in Turek v. Lane, 317 F.Supp. 349, 350 (E.D.Pa.1970): "The domicile of a serviceman at the time of enlistment is presumed not to change, and evidence of an intention to change must be `clear and unequivocal.'" Underlying this concept is a recognition that the selection of a residence of a person subject to military orders is not a voluntary choice, but the product of compulsion. The most persuasive indication of the compulsory nature of Dinan's transfer orders was evidence that he took vows of obedience to the Superior General of his Order. Arrayed against this, however, was Dinan's testimony that these "vows of...

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