Webb v. Nolan

• Decision Date: 29 August 1972
• Docket Number: No. C-76-WS-72.,C-76-WS-72.
• Citation: 361 F. Supp. 418
• Court: U.S. District Court — Middle District of North Carolina
• Parties: Neeta WEBB v. Robert E. NOLAN, M.D.

361 F. Supp. 418

Neeta WEBB v. Robert E. NOLAN, M.D.

No. C-76-WS-72.

United States District Court, M. D. North Carolina, Winston-Salem Division.

August 29, 1972.

Neeta Webb, pro se.

Ralph M. Stockton, Jr., Winston-Salem, N. C., for defendant.

MEMORANDUM OPINION

HIRAM H. WARD, District Judge.

This matter is before the Court on motion of the defendant to dismiss for lack of jurisdiction on the grounds that diversity of citizenship does not exist between the parties. The plaintiff thereafter filed a demand for jury trial on the jurisdictional question raised by the defendant's motion to dismiss.

The motion came on for hearing on August 9, 1972. The plaintiff appeared pro se and the defendant was represented by counsel. The Court denied the plaintiff's request for a trial by jury of the jurisdictional question raised by the defendant's motion, holding that unless the Court wishes to use a jury advisorily, the issue of citizenship is not a jury issue. Seideman v. Hamilton, 275 F.2d 224 (3rd Cir. 1960), cert. den. 363 U.S. 820, 80 S.Ct. 1258, 4 L.Ed.2d 1517 (1960); Har-Pen Truck Lines, Inc. v. Mills, 378 F.2d 705 (5th Cir. 1967); Spears v. Ohio River Company, 406 F.2d 344 (3rd Cir. 1969).

Having considered the entire official file, documentary evidence introduced by the defendant, response of the plaintiff and her affidavit, exhibits and testimony, but excluding as evidence affidavits submitted by the plaintiff of California residents whose depositions were not taken, the Court concludes that the plaintiff was a resident and citizen of North Carolina on March 14, 1972, the date this action was commenced and that the Court is therefore without jurisdiction because diversity of citizenship does not exist between the parties, since the defendant was likewise a resident of this state.

The defendant's motion to dismiss for lack of jurisdiction was filed under Rule 12(b), Federal Rules of Civil Procedure, and was also raised in his answer. In considering this matter and in addition to the evidence submitted, the Court is constrained to take judicial notice of the previous case between the same parties in this Court, as well as other litigation over the years by the plaintiff herein in this Court. Golaris v. Jewel T. Co., Inc., 22 F.R.D. 16 (D.C. Ill.1958).

On August 31, 1967, the plaintiff through her attorney filed a malpractice suit against the defendant (C-179-WS-67), alleging that she was a citizen and resident of California and invoking the jurisdiction of the Court on diversity grounds which were not questioned by the defendant. On March 23, 1971, during the trial of this action before Judge Regan, the plaintiff appeared pro se and prior to the conclusion of plaintiff's case-in-chief submitted to a voluntary dismissal. At this stage the situation was the same as if the suit had never been filed. Bunger v. United States Blind Stitch Mach. Corp., 8 F.R. D. 362 (S.D.N.Y.1948); 9 Wright & Miller, FP&P, Sec. 2367. However, under Rule 41(a)(1) & (2), N.C. Rules of Civil Procedure, a voluntary dismissal without prejudice allows a new action on the same claim to be instituted within one year.

On March 14, 1972, within the one year period, the plaintiff filed the instant case. Again appearing pro se, she alleged that she was a citizen of California while the defendant was a citizen of North Carolina. Consequently, diversity of citizenship must exist as of that date in order to establish federal jurisdiction. 28 U.S.C.A. § 1332 (and cases cited in Note 230).

The plaintiff was born in California in 1908 and lived in several different states with her family prior to their moving to Mt. Airy, North Carolina. Thereafter, in 1954, after receiving her Masters Degree in Education at the University of North Carolina at Greensboro, plaintiff accepted a high school teaching position in California. Since that date plaintiff has regularly returned to North Carolina during the vacations and holidays from her teaching job in California. For years she considered a Winston-Salem physician her regular or family doctor and went to him for her regular checkups.

The defendant insists that since Rule 11, Federal Rules of Civil Procedure, requires "a party who is not represented by an attorney to sign his pleading and state his address," the plaintiff stating her address as "131 W. Lebanon Street, Mt. Airy, North Carolina 27030" on all pleadings as well as correspondence in a rather voluminous file constitutes a binding judicial stipulation as to address. While this is undoubtedly true, address and domicile are not synonymous and citizenship is determined by domicile, not address or residence alone. However, the evidence is uncontradicted that in July 1971 the plaintiff became the owner of her former family home¹ at that address in Mt. Airy and has resided there continuously since that date. This property consists of a lot with a 12-room house thereon, every room being furnished or at least partially furnished. The plaintiff has listed the property for taxes in 1971 and 1972 in Surry County, North Carolina.

In answer to the defendant's interrogatories, the plaintiff admits that she has resided in her Mt. Airy home from July 1971 until the present time; that she was not employed in California on the date this action was instituted nor was she seeking employment there; that she owns personal property in California and it is in storage there.

The plaintiff, on the other hand, strenuously contends that she has every intention of returning to California; that her North Carolina home is a holiday or vacation home and that while she has been physically present in North Carolina since July 1971, she is still "living" in California; that she maintains a bank account in California and has (since answering defendant's interrogatories) been making payments on a lot; and that she has notified her high school principal that she plans to return to teach there in the fall of 1972; also, she has not registered to vote in North Carolina but is so registered in California, although she has not exercised voting privileges there since she returned...