White v. All America Cable & Radio, Inc.

• Decision Date: 13 February 1986
• Docket Number: Civ. No. 81-2279 HL.
• Citation: 642 F. Supp. 69
• Parties: W. Gayden WHITE, Plaintiff, v. ALL AMERICA CABLE & RADIO, INC., Defendant.
• Court: U.S. District Court — District of Puerto Rico

642 F. Supp. 69

W. Gayden WHITE, Plaintiff, v. ALL AMERICA CABLE & RADIO, INC., Defendant.

Civ. No. 81-2279 HL.

United States District Court, D. Puerto Rico.

February 13, 1986.

Charles A. Cordero, San Juan, P.R., Heber Lugo, Santurce, P.R., for W. Gayden White.

Radames A. Torruella and Edwin J. Guillot, Jr., McConnell, Valdes, Kelley, Sifre, Griggs & Ruiz-Suria, San Juan, P.R., for All America Cable and Radio Inc.

OPINION AND ORDER

LAFFITTE, District Judge.

Plaintiff, W. Gayden White, who claims to be a California citizen, filed this action against defendant, All America Cable & Radio, Inc. ("All America"), a Delaware corporation with its principal place of business in Puerto Rico, for constructive discharge under 21 LPRA 185a et seq., and compensation for unpaid overtime hours, accrued vacation time, severance pay and moving expenses. By Opinion and Order dated October 1, 1985, we denied All America's 12(b)(1) motion to dismiss for lack of diversity jurisdiction, finding that plaintiff had established domicile in California and that jurisdiction was proper under 28 U.S.C. 1332(a). Defendant has motioned the Court to reconsider this Opinion and Order. Defendant's motion is granted. Upon examination of documents recently submitted by defendant, together with a reexamination of the evidence previously before the Court, we find that plaintiff has failed to meet his burden of establishing domicile in California and that the Court is without jurisdiction under 28 U.S.C. 1332.

This case presents a unique jurisdictional issue. The action was filed on November 25, 1981. At the time of filing plaintiff had abandoned his domicile in Puerto Rico. He was living temporarily in Caracas, Venezuela, for job training, but claims to have established domicile in California. Plaintiff was physically present in California for only a day and a half prior to accepting his new job. In our Opinion and Order of October 1, 1985, we found plaintiff had established the requisite intent to reside in California for an indefinite period after his training in Caracas, and, given the peculiar circumstances of the case, the physical presence in California for only a day and a half was sufficient to meet the test to establish a new domicile. Defendant's Motion for Reconsideration asks the Court to reexamine whether plaintiff can establish by a preponderance of the evidence that he had the intent to reside indefinitely in California at the time of filing the complaint.

We summarize only those facts which determine the outcome of this issue.¹ In 1980 plaintiff had become dissatisfied with his job at defendant company, All America. In this same year plaintiff was in Caracas, Venezuela where he was approached by a former acquaintance, Mr. Cherrie, a vice president of the Bank of America stationed in Venezuela. According to Mr. White's statements made at his deposition he met with Mr. Cherrie to discuss "problems going on in the Virgin Islands," presumably concerning security since this is Mr. White's field of expertise. At their meeting in Caracas, Mr. Cherrie mentioned that there may be a security job opening with the Bank of America.

In February, 1981, plaintiff met to discuss job possibilities with Mr. Cherrie in Caracas and with other Bank of America officers in their headquarters in San Francisco.² In April, 1981, Bank of America telephoned plaintiff in Puerto Rico to offer him a position. By the terms of this job plaintiff was sent temporarily to Caracas for training in international banking security. In accordance with bank procedure, while plaintiff was in Caracas he was considered a domestic of California working out of the main office in San Francisco.

Upon accepting the position plaintiff moved in April, 1981, directly from Puerto Rico to Caracas. He placed for sale all of his property in Puerto Rico and his car, and closed his banking and credit accounts. Some of his belongings were transferred with him to Caracas, while the remaining property was stored in Puerto Rico until he was permanently placed by Bank of America. There is no evidence in the record that plaintiff had the intention of returning to Puerto Rico when he left for Caracas.

Plaintiff remained in Caracas until 1983 when he was transferred to California. He continues to reside in California.

The federal court is a court of limited jurisdiction and those statutes granting the court jurisdiction are to be strictly construed. See Thomson v. Gaskill, 315 U.S. 442, 446, 62 S.Ct. 673, 675, 86 L.Ed. 951 (1942); Healy v. Ratta, 292 U.S. 263, 54 S.Ct. 700, 78 L.Ed. 1248 (1934). An attack on the court's jurisdiction may not be waived. The issue of a court's jurisdiction may be raised at any time, even on appeal, see Velez v. Crown Life Ins. Co., 599 F.2d 471 (1st Cir.1979), and may be raised by either party or the court itself. Basso v. Utah Power and Light Co., 495 F.2d 906 (10th Cir.1974) (citing Atlas Life Ins. Co. v. W.I. Southern, Inc., 306 U.S. 563, 59 S.Ct. 657, 83 L.Ed. 987 (1939). It goes without saying that without proper jurisdiction the federal court has no authority to decide the merits of a case. See F.R.C.P. 12(h)(3).

The federal court has diversity jurisdiction under 28 U.S.C. sect. 1332 of claims in excess of $10,000 when complete diversity of citizenship exists between the parties. Whenever a proper challenge to plaintiff's allegations of diversity jurisdiction is made, plaintiff has the burden of supporting the allegations by a preponderance of the evidence. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Reyes v. Eastern Airlines, Inc., 528 F.Supp. 765 (D.P.R.1981). Plaintiff must establish that the court had jurisdiction as of the date the complaint was filed. Janzen v. Goos, 302 F.2d 421, 424 (8th Cir.1962); Lefkowitz v. Lider, 443 F.Supp. 352, 355 (D.Mass.1978).

A party's citizenship for diversity purposes is the place of domicile. Hawes v. Club Ecuestre el Comandante, 598 F.2d 698, 702 (1st Cir.1979). Two elements are necessary to establish domicile: 1) physical presence in the claimed domicile, and 2) an intent to remain there indefinitely. Sun Printing & Publishing Assn. v. Edwards, 194 U.S. 377, 383, 24 S.Ct. 696, 698, 48 L.Ed. 1027 (1904); Miller Press Factory, Inc. v. Douglas, 385 F.Supp. 874 (D.P.R. 1974). Though no minimum period of physical presence is required, Hawes, supra at 701, both elements must exist simultaneously to establish domicile; one element alone is insufficient. Sun Printing, supra; see also, Honneus v. Donovan, 93 F.R.D. 433, 434, fn. 1 (D.Mass.1982); Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2nd., sect. 3613. Once the elements are met a new domicile is established instantaneously.

A plaintiff who claims to have changed his domicile in favor of a new one has a particularly heavy burden of establishing citizenship, since the law presumes that a domicile once established continues unless and until a new domicile is acquired. Anderson v. Watt, 138 U.S. 694, 11 S.Ct. 449, 34 L.Ed. 1078 (1891); Holmes v. Sopuch, 639 F.2d 431 (8th Cir.1981); Slaughter v. Toye Bros. Yellow Cab Co., 359 F.2d 954 (5th Cir.1966); Wright, Miller & Cooper, supra, sect. 3612.

The reason for this presumption is to solve the problem of locating an individual who has clearly abandoned his present domicile but either has not arrived at a new one or has arrived without formulating the intent to stay. Wright, Miller & Cooper, supra, sect. 3612. This presumption may also apply in the case of an American citizen living abroad temporarily.

In our Opinion and Order of October 1, 1985, we relied on plaintiff's statements in his affidavit of his desire to move to California and his intent to remain there indefinitely. In the affidavit plaintiff testifies that he and his wife had decided to settle in California because they liked the area, his wife had relatives there and his daughter planned to return to the state. We recognize that a party's statements of intent are self-serving and are subject to judicial skepticism when the statements are contradicted by other evidence in the record. Korn v. Korn, 398 F.2d 689 (3rd Cir.1968).

Upon initial consideration of plaintiff's intent to establish domicile in California we found little evidence to contradict plaintiff's assertions in his affidavit. In fact, the veracity of the statements was confirmed by subsequent events—plaintiff was transferred to California in 1983 and he has purchased property there.³ However, with its Motion for Reconsideration defendant has submitted some new evidence of employment agreements and has encouraged the Court to look at evidence previously submitted in a new light. On reconsideration we find that plaintiff's statement of intent to be a California domiciliary at the time the complaint was filed cannot be supported.

Plaintiff signed two employment agreements with Bank of America. Clause 5 of the first agreement states:

Recognizing the geographical spread of the Bank's operations, I shall hold myself available for transfer to any location to which I may be assigned.

Clause 2 of the second agreement states:

Bank reserves the right to reassign Employee to any location.

At his deposition plaintiff...