Mallon v. Lutz
| Decision Date | 10 May 1963 |
| Docket Number | Civ. A. No. 23359. |
| Citation | 217 F. Supp. 454 |
| Parties | Harold MALLON, Plaintiff, v. Oscar LUTZ and Ruth Lutz, Defendants. |
| Court | U.S. District Court — Western District of Michigan |
Leitson, Dean, Dean & Abram, by Max Dean, Flint, Mich., for plaintiff.
Garan, Lucow & Miller, by Milton Lucow, Detroit, Mich., for defendants.
This is a personal injury action filed December 26, 1962. Defendants have moved to dismiss on the ground that diversity of citizenship between the parties does not exist. Upon the filing of the depositions of plaintiff and his wife and after consideration of the briefs of both parties, the court makes the following findings of fact and of law:
1. Findings of fact.
1. On May 22, 1961, the date of the accident which gave rise to the alleged cause of action, plaintiff was domiciled in and was a resident of Michigan, where he was a student at the University of Detroit Dental School.
2. In September, 1962, plaintiff and his wife moved to Brookline, Massachusetts, where plaintiff attends the Boston University Medical School, for specialized training in oral surgery.
3. Plaintiff has applied for internship and residency upon completion of his studies at the University of Pittsburgh, the University of Alabama and the Detroit Receiving Hospital. Plaintiff has been accepted by the Detroit Receiving Hospital for a residency commencing June, 1963 and plans to move to Detroit in June, 1963.
4. Plaintiff is registered to vote in the City of Flint, Michigan where he last voted by absentee ballot cast in Detroit in 1960. Plaintiff has not registered to vote in Brookline, Massachusetts because upon making inquiry for this purpose he was advised that his actual term of residence was insufficient.
5. Plaintiff secured a Michigan motor vehicle registration for his 1962 model car in December, 1962 as plaintiff stated in his deposition, page 9, "that is when I was home for Christmas vacation."
6. Plaintiff has a Michigan driver's license and in January, 1963, plaintiff secured a Massachusetts driver's license which, as he explained, was for the purpose of complying with Massachusetts law.
7. Plaintiff stated that he regards Brookline, Massachusetts as his permanent address until June of 1963, when he will have concluded his course of training.
8. Plaintiff's wife has a Michigan driver's license which was renewed in December of 1962. This license bears the address of her father-in-law in Flint, Michigan. She does not have a Massachusetts driver's license.
9. Plaintiff's wife is registered to vote in Flint, Michigan and has never registered to vote in Massachusetts.
10. Plaintiff's wife stated that she considered Boston, Massachusetts to be her permanent residence.
2. Conclusions of Law.
1. The existence of diversity of citizenship is to be determined as of the time the suit is commenced. Smith v. Sperling, 354 U.S. 91, footnote 1, p. 93, 77 S.Ct. 1112, p. 1113, 1 L.Ed.2d 1205 (1957).
2. Where a plaintiff's allegations of jurisdictional facts are challenged by defendant, plaintiff bears the burden of establishing the allegations by a preponderance of the evidence. McNutt v. General Motors Acceptance Corporation, 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1935); Janzen v. Goos, 302 F.2d 421, 424 (8th Cir., 1962); Schuckman v. Rubenstein, 164 F.2d 952, 955 (6th Cir., 1947).
3. Citizenship and domicile are synonymous for the purposes of diversity jurisdiction. McClanahan v. Galloway, 127 F.Supp. 929, 930 (N.D.Calif.1955).
4. One may have only one domicile at a time and a domicile once established persists until a new one is acquired. Mitchell v. U. S., 88 U.S. (21 Wall.) 350, 353, 22 L.Ed. 584 (1874); Janzen v. Goos, 302 F.2d 421, 425 (8th Cir., 1962).
5. To acquire a domicile of choice the law requires the physical presence of a person at the place of the domicile claimed, coupled with the intention to remain there. Mitchell v. U. S., 88 U.S. (21 Wall.) 350, 353, 22 L.Ed. 584 (1874); Spurgeon v. Mission State Bank, 151 F.2d 702, 706 (8th Cir., 1945), cert. den. 327 U.S. 782, 66 S.Ct. 682, 90 L.Ed. 1009.
6. Mere absence from a fixed home does not effect a change of domicile. Welsh v. American Surety Co. of New York, 186 F.2d 16, 17 (5th Cir., 1951).
7. Declarations of intention to establish domicile in a particular locality may be negatived by other declarations and inconsistent acts. Welsh v. American Surety Co. of New York, 186 F.2d 16, 18 (5th Cir., 1951)...
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...v. Adden, 136 U.S. 348, 10 S. Ct. 843, 34 L.Ed. 360 (1890); Janzen v. Goos, 302 F.2d 421, 424 (8th Cir. 1962); Mallon v. Lutz, 217 F.Supp. 454, 455 (E.D.Mich.1963). 2 Mitchell v. United States, 21 Wall. 350, 88 U.S. 350, 22 L.Ed. 584 (1874); Stine v. Moore, 213 F.2d 446, 448 (5th Cir. 1954)......
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Lyons v. Salve Regina College
...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 ......
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Hayes v. Board of Regents of Kentucky State University, 410.
...the absolute estoppel to claim retention of the previous domicile — contended for by counsel for the defendant." In Mallon v. Lutz, E.D.Mich., 217 F. Supp. 454 (1963), a diversity determination was conducted by examining numerous factors; voting was considered but not given conclusive weigh......
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O'BRIEN v. Jansen
...Campbell v. Oliva, 295 F.Supp. 616, 617 (E.D.Tenn.1968); Wehrle v. Brooks, 269 F.Supp. 785, 787 (W.D.N.C.1966); Mallon v. Lutz, 217 F.Supp. 454, 456 (E.D.Mich.1963). As the above cases show, this is a fact-intensive The parties here agree that citizenship, under the diversity jurisdiction a......