Lyons v. Salve Regina College, Civ. A. No. 76-0390.

• Court: United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
• Writing for the Court: Peter J. McGinn, Providence, R. I., for defendants
• Citation: 422 F. Supp. 1354
• Parties: Sheila M. LYONS v. SALVE REGINA COLLEGE et al.
• Decision Date: 19 November 1976
• Docket Number: Civ. A. No. 76-0390.

422 F. Supp. 1354

Sheila M. LYONS
v.
SALVE REGINA COLLEGE et al.

Civ. A. No. 76-0390.

United States District Court, D. Rhode Island.

November 19, 1976.

422 F. Supp. 1355

COPYRIGHT MATERIAL OMITTED

422 F. Supp. 1356

Walter R. Stone, Providence, R. I., for plaintiff

Peter J. McGinn, Providence, R. I., for defendants.

OPINION

PETTINE, Chief Judge.

In this action, plaintiff Sheila Lyons, a former nursing student at defendant Salve Regina College, seeks specific relief and damages for an alleged breach of contract. According to plaintiff, the defendant breached its contract by taking actions unauthorized by, and contrary to, the rules of the College. The parties are agreed that these rules, promulgated by the College and accepted for consideration by the plaintiff, constituted a contract. As a result of this alleged breach, plaintiff claims that she was improperly forced out of the Nursing Department, graduating with a psychology degree instead.

The Court's jurisdiction is invoked pursuant to 28 U.S.C. § 1332 (1970) (diversity of citizenship; amount in controversy exceeding $10,000.).

I

Defendants, at the time this case was heard, moved the Court to dismiss the complaint for lack of subject matter jurisdiction, contending that plaintiff was in fact a Rhode Island resident and that the amount in controversy did not exceed $10,000. exclusive of interest and costs. The Court reserved judgment on this motion, pending the hearing, at which the parties offered evidence on both the jurisdictional questions and the merits. The Court is now prepared to rule on defendants' motion to dismiss and the same is hereby denied for the reasons that follow.

Defendants' contention that the Court is without jurisdiction because the amount in controversy is less than $10,000 cannot be sustained. While the burden of establishing the jurisdictional amount in this case is on the plaintiff, that burden is not heavy. She must simply show that it does not appear to a legal certainty that the amount in controversy is less than $10,000. Gibbs v. Buck, 307 U.S. 66, 59 S.Ct. 725, 83 L.Ed. 1111 (1939); Murray v. Vaughan, 300 F.Supp. 688, 694 (D.R.I.1969). Absent evidence of bad faith the determination is made by examining the face of plaintiff's complaint. Horton v. Liberty Mutual Insurance Co., 367 U.S. 348, 353, 81 S.Ct. 1570, 6 L.Ed.2d 890 (1961).

Defendants argue that because plaintiff testified that her father paid her tuition at Salve Regina College, she is not monetarily damaged by the College's alleged breach of contract and therefore has not brought to this Court a controversy regarding an amount in excess of $10,000. This argument mistakes the basis upon which the "amount in controversy" is determined. The proper basis is the "value of the right sought to be gained by the plaintiff". Hedberg v. State Farm Mutual Automobile Insurance Co., 350 F.2d 924, 928 (8th Cir. 1965) (per Blackmun, J.). Here plaintiff alleges that the College's action has "seriously damaged plaintiff's opportunities for higher education and employment as a Nurse" and seeks a mandatory injunction reinstating her in the nursing program at the College. She has testified that she desires to pursue a career as a nurse. If unsuccessful in her efforts to resolve her problems, her testimony indicates that she will find it difficult if not impossible to transfer to another school and will have to begin her nursing studies all over again, entailing expenses in excess of $10,000. In

422 F. Supp. 1357

addition, since leaving Salve Regina, plaintiff has sought employment in lesser paying jobs in the health care field. She has been thus far unable to gain employment, but if she does, the Court takes judicial notice that she will earn less money in the health care field without a nursing degree than she would if she had one. Cf. Walsh v. Local Board No. 10, 305 F.Supp. 1274, 1276 (S.D.N.Y.1969). Absent any relevant evidence in support of defendant's position, the Court will accept plaintiff's good faith allegation that the amount in controversy exceeds $10,000.¹ See Silva v. East Providence Housing Authority, 390 F.Supp. 691, 694 (D.R.I.1975)

Defendants also seek dismissal on the grounds that plaintiff is in fact a resident of Rhode Island and that the diversity required for this Court's jurisdiction under 28 U.S.C. § 1332 is therefore lacking. The Court does not agree. Out-of-state students are generally "viewed as temporary residents who are located in the state only for the duration of and for the purpose of their studies". 13 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3619 (1975). It is therefore usually presumed that they retain their domicile at their former place of abode. See Campbell v. Oliva, 295 F.Supp. 616, 619 (E.D.Tenn. 1968); Mallon v. Lutz, 217 F.Supp. 454, 456 (E.D.Mich.1963); Bainum v. Kalen, 272 Md. 490, 325 A.2d 392, 398 (1974). In the present case, plaintiff has testified that she intends to return to Connecticut when she completes school. As evidence of her ties to that state, she has submitted a Connecticut driver's license, a Connecticut "Majority Card", and a Connecticut voting card.²

On the other hand, defendants point to several facts claimed to be inconsistent with temporary residence. Plaintiff placed advertisements in the Newport (R.I.) Daily News seeking "temporary or permanent" employment. In addition, defendant Megley has testified, and plaintiff does not deny, that plaintiff told her that she wanted to stay in Rhode Island. Finally, defendants have shown that plaintiff was registered to vote in Rhode Island and changed her registration to Connecticut only after she took steps to begin this lawsuit.

Notwithstanding this evidence, the Court finds that plaintiff is in fact a Connecticut resident. This finding is based on plaintiff's statement regarding her intentions, which the Court finds entirely credible, cf. Campbell v. Oliva, supra, 295 F.Supp. at 618, and the supporting evidence.

This finding is not altered by plaintiff's seemingly inconsistent acts and statements. In view of employers' well-known hesitancy to accept as employees persons who do not offer assurances that they will be permanent, plaintiff's advertisement seeking "temporary or permanent" employment is not conclusive on the issue of domicile. Plaintiff's statement to defendant Megley that she wished to remain in Rhode Island was made in the course of a discussion about transferring to an out-of-state nursing school and the Court does not understand it to mean anything more than that plaintiff wished to complete her schooling here. With regard to plaintiff's temporary registration as a Rhode Island voter, the

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Court accepts plaintiff's explanation that she registered in Rhode Island because she was anxious to vote in the presidential primary. In brief, no evidence has been introduced that effectively rebuts plaintiff's statement that her present intention is to return to Connecticut when her temporary sojourn in Rhode Island is over. This is sufficient to establish diversity and the Court accordingly turns to the merits in this controversy

II

The issues in this case center largely around the state of mind of the parties. There is little dispute as to external events.

In September 1975, plaintiff, Sheila Lyons, entered into her fourth and final year as a nursing student at defendant Salve Regina College. She had been a successful student up until that time, receiving A's and B's in nearly all of her courses and serving as president of her class. Among the courses for which Lyons registered was a required clinical and theoretical course, designated as Nursing 402A. The course ran from early September until the end of October.

On September 29, 1975, Lyons went to Boston by ambulance, accompanying an ill friend to Massachusetts General Hospital. She returned to class on October 2, having missed three classes and two clinical experiences, and thereupon consulted with her instructor, Maureen Hull. Lyons claims that Ms. Hull assured her that the only result of her absence would be that she would receive a grade of "Incomplete" for the course. Ms. Hull claims that no such assurances were given. In any case, Lyons continued to attend classes, submitted papers, and took the final exam, even though she could have withdrawn from the course without incurring a grade of "F" had she chosen to do so before the last day of class.

The course ended in late October, but the grades were not immediately promulgated. When they were, Lyons learned that she had received an "F" rather than the allegedly promised "Incomplete". On December 17, 1975, Lyons formally appealed the grade of "F". This action was taken pursuant to the following provisions of the Salve Regina College Academic Information and Registration Materials for 1975:

GRADE APPEAL

Students have the right to a formal grade appeal after the grade has been submitted and recorded. The student must, however, attempt to resolve the matter with the instructor before the process is set in motion by the Dean of Students.

GRADE APPEAL PROCESS

If the student fails to resolve the appeal with the instructor to the satisfaction of the student, the student may request that a grade appeal committee be established. To initiate the process the student contacts the Dean of Students office. The Dean of Students sets up the process by which:

1. The student chooses a faculty member to represent his/her case.

2. The instructor chooses a faculty member to represent his/her case.

3. A third faculty member mutually acceptable to the student and to the instructor serves as chairman.

After both cases are presented to the three-member grade appeals committee, the recommendation of the committee is made to the Dean of Students/Associate Dean of the College.³

In February 1976, the Appeal Committee met and took testimony from Lyons and from Ms. Hull, her instructor. After hearing all the evidence, the...