Wasson v. Northrup Worldwide Aircraft Serv., Inc., SA-76-CA-305.

• Decision Date: 17 January 1978
• Docket Number: No. SA-76-CA-305.,SA-76-CA-305.
• Citation: 443 F. Supp. 400
• Parties: Jimmy L. WASSON v. NORTHRUP WORLDWIDE AIRCRAFT SERVICES, INC.
• Court: U.S. District Court — Western District of Texas

443 F. Supp. 400

Jimmy L. WASSON v. NORTHRUP WORLDWIDE AIRCRAFT SERVICES, INC.

No. SA-76-CA-305.

United States District Court, W. D. Texas, San Antonio.

January 17, 1978.

J. Anthony Guajuardo, San Antonio, Tex., for plaintiff.

Clayborne B. Gregory, Jr., San Antonio, Tex., for defendant.

MEMORANDUM ORDER

SUTTLE, District Judge.

Although federal courts have been vested with original jurisdiction over diversity actions since the passage of the First Judiciary Act,¹ not even the most learned commentators have been able to state with complete certainty why such jurisdiction was initially created or why it is any longer necessary.² Indeed, even the reason most commonly cited to justify diversity jurisdiction — the need to insure a "neutral" forum for resolving disputes between citizens of different states — loses much of its force as our society grows ever more mobile. This is especially true when the narrow rules that have come to govern the determination of diversity are applied in cases such as this where at least one of the parties has spent much of his adult life traveling from one job and one "residence" to another. If the history of this suit shows anything, it stands as a testament to Justice Frankfurter's declaration that diversity jurisdiction "is inherently . . . not founded in reason." Lumbermen's Casualty Co. v. Elbert, 348 U.S. 48, 56, 75 S.Ct. 151, 1156, 99 L.Ed. 59 (1954) (concurring opinion).

I.

The Plaintiff brought this suit to recover damages stemming from an alleged breach of contract.³ As grounds for invoking diversity jurisdiction the Plaintiff alleged that he was a citizen of Texas and that the Defendant corporation was a citizen of Oklahoma. The Defendant responded by moving that the suit be dismissed for lack of jurisdiction over the subject matter, alleging that the Plaintiff was, in fact, a citizen of Oklahoma.⁴

Whenever a jurisdictional issue has been raised, the burden of proof rests on the party alleging jurisdiction. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135 (1936). Nevertheless, the Plaintiff let eleven months pass without furnishing the court any affidavits detailing the factual basis for his assertion. Finally, on October 31, 1977, this court issued an "Order Setting Schedule" in which the Plaintiff was given until November 11, 1977, to file any affidavits or briefs in support of jurisdiction; the Defendant was required to file any response by November 18, 1977. The order further stated the court was "confident it could reach a decision on the basis of the affidavits submitted by the parties" and a decision was promised by December 7, 1977. Unfortunately, the affidavit subsequently submitted by the Plaintiff appeared to be totally unresponsive to the requirements outlined in the October 31 order. The Plaintiff simply declared that he "abandoned his residence and domicile in Oklahoma, with no intention of returning there, on June 26, 1976," when he was married in San Antonio, Texas. There was no mention of any objective factors showing a change in citizenship such as driver's license, voter's registration, ownership of property, and so forth. The affidavit submitted by the Defendant, however, indicated that the reason the Plaintiff omitted these factors was because he had done nothing, apart from getting married, that would in any way give the slightest indication of an intent to remain in Texas.⁵ In fact, the only thing the Plaintiff had done that might show any permanent ties with a particular state was to maintain a current Oklahoma driver's license during his entire stay in Texas. Quite clearly it became impossible for the court to achieve its goal of reaching a decision on the basis of the affidavits and still do justice to the parties. For the affidavits failed to reveal why the Plaintiff would claim Texas citizenship solely on the basis of marriage when he failed to follow that marriage with a single step — not even replacing his out-of-state driver's license with a Texas one despite a state law requiring all new residents to do so⁶ — that would indicate the slightest intent to settle here. Thus the court believed an evidentiary hearing on the diversity issue was necessary.

The hearing was held on January 5, 1978. The Plaintiff was the only witness. After hearing the evidence and the arguments of counsel, this court dismissed the suit on the grounds that it lacked jurisdiction over the subject matter, there being no diversity of citizenship between the parties. The purpose of this order is to set forth the findings of fact and the conclusions of law upon which the court based its decision. If there is any inconsistency between this order and the prior oral ruling, this order shall control.

II. Findings of Fact

The Plaintiff was born in Cleveland, Oklahoma, on September 18, 1931. When the Plaintiff was five his family moved to Bristow, Oklahoma, where his family still resides. Since completing high school in Bristow, the Plaintiff has spent his adult life continually moving from one job and one location to another; included among the various places where the Plaintiff has lived and worked are Wichita, Houston, Brownsville, Oakland, and Wake Island. On January 1, 1951, the Plaintiff was married for the first time. The marriage was performed in Oklahoma. This marriage ended in divorce in 1967 and the Plaintiff's ex-wife still resides in Sapulpa, Oklahoma, along with three of their four children. During much of this marriage the Plaintiff continued to work in various jobs throughout the country; it is unclear whether his wife and family accompanied him to his new locations often, or at all.

The Plaintiff married for a second time in November, 1969, while he was in the Philippines. This marriage also ended in divorce in February, 1976. Although the evidence is also unclear on this point, it appears that while the Plaintiff continued to travel, his second wife remained in Sacramento, California, with their only child; this second family still lives in Sacramento. Some of the locations in which the Plaintiff lived during the course of this marriage include Sacramento, Fort Worth, Oklahoma City, and South Viet Nam. Again, the evidence is unclear whether his second family accompanied him often, or at all.⁷

On November 8, 1973, the Plaintiff entered into an employment agreement with the Defendant. This contract was executed in Lawton, Oklahoma, and provided that the Plaintiff would be working for the Defendant in South Viet Nam. On the contract the Plaintiff listed his permanent address as 411 E. 8th St., Bristow, Oklahoma, which was his parents' residence. The Plaintiff also gave that address as the place for his remains to be shipped in the event that he became another casualty of the Viet Nam war. Two facts stand out about this address: first, the Plaintiff gave it in spite of the fact that his wife and child were living in Sacramento; and, second, this was the address that the Plaintiff always gave as his permanent address no matter where he was working at the time.

The Plaintiff left for Viet Nam in December, 1973. When he departed, he possessed an Oklahoma driver's license; the license was obtained when the Plaintiff was in his teens and, despite his travels, it was renewed in Oklahoma time and time again.

While the Plaintiff was in South Viet Nam he entered into a second employment agreement with the Defendant on January 1, 1975. This contract also lists the Plaintiff's permanent address as 411 E. 8th St., Bristow, Oklahoma, and that address is again designated as the location to which the Plaintiff's remains should be shipped in the event of his death. At the time he executed this contract, the Plaintiff was still married to his second wife; she still resided in Sacramento, California.

In April, 1975, the Plaintiff was forced to evacuate from South Viet Nam in the face of the imminent takeover by the North Vietnamese. On April 24, 1975, the Plaintiff left Viet Nam aboard a military plane bound for Guam. The plane developed mechanical problems, however, and was diverted to the Philippines. Due to the priority status given Vietnamese refugees, the Plaintiff's civilian status, and the general confusion that followed in the wake of the collapse of the South Vietnamese regime, the Plaintiff was unable to return to the United States until October 18, 1975, when he was permitted to board a military flight from the Philippines to Travis Air Force Base in California.

After arriving at Travis, the Plaintiff flew to Tulsa, Oklahoma, and from Tulsa he made his way to Bristow. During the course of his stay in Bristow, the Plaintiff and his second wife, who apparently still remained in Sacramento, were divorced. The Plaintiff remained in Bristow until April 10, 1976, when he was hired by Lear Siegler, Inc., and moved to Universal City, Texas. Shortly before coming to Texas, the Plaintiff renewed his Oklahoma driver's license. The license — which the Plaintiff still uses — shows his address as 411 E. 8th Street, Bristow. The Plaintiff has remained in Universal City since April, 1976, with the exception of a visit to Bristow to see his mother, brother, and sister in January, 1977.⁸ In August, 1977, the Plaintiff changed employers and began working at his current job with the D. Howard Co. at the San Antonio International Airport.

According to his sworn affidavit, the Plaintiff continued to regard himself as an Oklahoma citizen (presumably with a permanent address at 411 E. 8th Street, Bristow) until June 26, 1976. On that date he was married, for the third time, to Ms. Edna Brumbelow and he moved into Ms. Brumbelow's apartment in Universal City. Yet, despite his assertion that his citizenship changed on June 26, the Plaintiff failed to undertake a single one of the steps that are normally associated with a change in domicile. He did not exchange his Oklahoma driver's license for a Texas license even though his wife owned an...