USCA1 Opinion
October 25, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1633
LIL IZQUIERDO, ET AL.,
Plaintiffs, Appellants,
v.
DENTON CONSTRUCTION, CO., ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen C. Cerezo, Chief U.S. District Judge]
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Before
Selya, Circuit Judge,
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Campbell, Senior Circuit Judge, and
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Boudin, Circuit Judge.
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Gabriel I. Penagaricano on brief for appellants.
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Gloria L. Lebron Nieves and Cobian & Valls on brief for
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appellees.
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Per Curiam. Plaintiffs-appellants appeal the dismissal
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of their action for lack of diversity jurisdiction, as well
as the denial of their motion for reconsideration. For the
following reasons, we affirm.
I.
This is a personal injury action arising out of a motor
vehicle accident which occurred in Puerto Rico. Plaintiffs-
appellants are a married couple, Robert Campbell and Lil
Izquierdo, and their three children, Robert, Jamilah, and
Kirsa Campbell Izquierdo. On November 29, 1991, Lil
Izquierdo and the three children were travelling together in
an automobile when it collided with a motor vehicle driven by
Rosario Rosa Acevedo. Lil Izquierdo was rendered unconscious
by the accident and remained in a coma until January 6, 1992.
On November 30, 1992, appellants brought a lawsuit in the
United States District Court for the District of Puerto Rico
against Rosario Rosa Acevedo, Denton Construction Company,
Integrand Assurance Company, and the Puerto Rico Highway
Authority. The amended complaint, which invokes diversity
jurisdiction under 28 U.S.C. 1332(a)(1), alleges that all
plaintiffs are citizens of New York and all defendants are
citizens of Puerto Rico.
On January 28, 1994, appellee Denton Construction
Company moved to dismiss the action, claiming that diversity
jurisdiction is lacking because Lil Izquierdo and the
children were domiciled in Puerto Rico at the time of the
accident. Appellee supported its contentions with, inter
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alia, excerpts from a deposition of Lil Izquierdo which
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revealed that she had been living in Puerto Rico for
approximately eleven years. She and her husband had moved to
Puerto Rico from New York after the birth of their third
child, Kisra. They voted and worked in Puerto Rico. After
some years, Robert Campbell moved back to New York because he
was able to find a better job there. Lil Izquierdo remained
in Quebradillas, Puerto Rico with the children and worked as
a school teacher.
In opposition, appellants pointed out that the relevant
date for determining whether diversity jurisdiction exists is
the time of filing the complaint. See, e.g., Valedon
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Martinez v. Hospital Presbiteriano de la Comunidad, 806 F.2d
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1128, 1132 (1st Cir. 1986). Appellants contended that Lil
Izquierdo and the children had joined Robert Campbell in New
York in January 1992, and that the entire family was
domiciled there at the time the complaint was filed.
Although since filing the complaint, Lil Izquierdo and the
children had returned to Quebradillas, and Lil Izquierdo had
returned to her former position as a school teacher,
appellants alleged that the return was solely for the
purposes of furthering Lil Izquierdo's rehabilitation and
attending to the lawsuit. Appellants supported their
allegations with a sworn statement, dated February 7, 1994,
attesting that Lil Izquierdo and her children had changed
their "residence" to New York in January 1992 and planned to
return there after Lil Izquierdo's rehabilitation was
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completed. Appellants also submitted excerpts from the
deposition of Lil Izquierdo in which she testified that after
becoming conscious and beginning her rehabilitation, she had
been unable to find a job in the United States and had
returned to Puerto Rico because she needed the "resource" and
her former supervisor was willing to let her work part-time
on a trial basis. Although she and the children were living
in their former home, Lil Izquierdo testified that she no
longer owned it and that it was now "under the bank's name."
On April 5, 1994, the district court found that
diversity is lacking, at least as to Lil Izquierdo, based, in
part, on her deposition testimony which suggested that "after
the accident she was packed up and taken off to the States."
The court observed that at no point in the excerpts submitted
did Lil Izquierdo express any desire to make New York her
domicile, even after she arrived. The court also noted the
absence of "any evidence traditionally evaluated that could
support a change in domicile for any of the three plaintiffs
domiciled in Puerto Rico." Judgment dismissing the case
without prejudice was entered on April 8, 1994.
On April 20, 1994, appellants filed a motion for
reconsideration supported by a second sworn statement, dated
May 2, 1994, in which Lil Izquierdo described her residence
in New York as "true, fixed and permanent" and her return to
Puerto Rico as "temporary." The district court denied the
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motion stating that the language and content of the statement
"are too stilted and constructed to be more than a belated
attempt to recreate a version of intent after the fact." The
court also stated:
If it is plaintiffs next strategy to physically
relocate once again to New York, in a belated
effort to once again prove her intent to be
domiciled there, we remind them that the moment for
consideration was the first time that she was
living there. All other considerations of
domicile, voter registration, property ownership,
driver's license, organizational ties, employment,
and the like, as well as the ties cut upon leaving
Puerto Rico were never demonstrated.
Appellants filed a timely notice of appeal from the dismissal
and from the denial of their motion for reconsideration.
II.
Federal jurisdiction under 28 U.S.C. 1332(a)(1)
requires that the "matter in controversy" be between
"citizens of different states." For purposes of diversity,
state citizenship is ordinarily equated with domicile.
Rodriguez-Diaz v. Sierra-Martinez, 853 F.2d 1027, 1029 (1st
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Cir. 1988). "A person's domicile `is the place where he has
a true, fixed home and principal establishment, and to which,
whenever he is absent he has the intention of returning.'"
Id. (quoting C. Wright, A. Miller & E. Cooper, 13B Federal
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Practice & Procedure 3612, at 526 (1984)). In order to
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change domicile, a person must (1) physically relocate to a
new state; and (2) intend to remain there. See Bank One,
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Texas, N.A. v. Montle, 964 F.2d 48, 50 (1st Cir. 1992). The
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determination of domicile is a mixed question of fact and
law, and a district court's finding will not be set aside
unless clearly erroneous. Id. at 51.
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Appellants contend that the district court erred in
finding that Lil Izquierdo never changed her domicile to New
York. We disagree. We note as an initial matter that once
challenged, appellants bore the burden of supporting their
allegations of jurisdiction with competent proof. See
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O'Toole v. Arlington Trust Co., 681 F.2d 94, 98 (1st Cir.
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1982). Since it is undisputed that Lil Izquierdo was
residing in New York at the time the complaint was filed,
appellants needed only to prove that she intended to remain
there. Appellants, however, presented no evidence whatsoever
bearing on the factors traditionally relevant to determining
such intent.1 For example, there is no evidence that Lil
Izquierdo, who voted in Puerto Rico, changed her voting
registration to New York. See Lundquist v. Precision Valley
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Aviation, Inc., 946 F.2d 8, 12 (1st Cir. 1991) (noting that
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1. These factors include:
the place where civil and political rights are
exercised, taxes paid, real and personal property
(such as furniture and automobiles) located,
driver's and other licenses obtained, bank accounts
maintained, location of club and church membership
and places of business or employment.
Lundquist v. Precision Valley Aviation, Inc., 946 F.2d 8, 11-
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12 (1st Cir. 1991) (quoting 1 Moore's Federal Practice,
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0.74[3.-3], at 788 (2d ed. 1991)).
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the place a person is registered to vote is a "weighty"
factor in determining domicile). Nor is there any other
objective evidence in the record that Lil Izquierdo
established political, civic, or community ties to New York.
Moreover, although appellants point out that Lil Izquierdo no
longer owned her home in Quebradillas by the time she
returned to Puerto Rico, the deposition excerpts reveal that
she was in contact with the bank and hoped to regain
ownership by making the necessary payment. Far from
demonstrating that Lil Izquierdo had severed ties with Puerto
Rico, such evidence suggests that she continued to view it as
her home.
We add that the sworn statement dated February 7, 1994,
attesting to Lil Izquierdo's change of domicile and her
intent to return to New York after further "rehabilitation,"
was conclusory and also conflicted with Lil Izquierdo's
deposition testimony that she lived "on a day by day basis"
and that "hopefully, something positive will happen and I'll
be able to pay for the house [in Quebradillas]." Cf. Hawes
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v. Club Ecuestre El Comandante, 598 F.2d 698, 704 (1st Cir.
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1979) (giving no weight to conclusory statements in affidavit
as to intention). Given the paucity of evidence that Lil
Izquierdo changed her domicile to New York, and conflicting
evidence to the contrary, we cannot say that the district
court committed clear error in making the determination that
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it did. See Lundquist, 946 F.2d at 13 (upholding district
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court's ruling on diversity where evidence was conflicting);
O'Toole, 681 F.2d at 98 (holding that "[t]he paucity of
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appellants' presentation of evidence justifie[d] the district
court's conclusion that they had not met [their] burden.").2
We also reject appellants' argument that the district
court erred in not giving them an evidentiary hearing on the
jurisdictional issue. "A district court has very broad
discretion in determining the manner in which it will
consider the issue of jurisdiction." Valedon Martinez, 806
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F.2d at 1132. Here, appellants were given ample opportunity
to present the court with facts relevant to the existence of
jurisdiction. Moreover, appellants did not request an
evidentiary hearing until after the case was dismissed.
Under the circumstances, the district court did not abuse its
discretion in deciding the issue on documentary evidence.
See O'Toole, 681 F.2d at 98 ("Any failure on the part of
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appellant to fully avail themselves of the opportunity to
present evidence to the court should not now be blamed upon
the court's choice not to require an evidentiary hearing.").
Lastly, we consider the denial of appellants' motion to
reconsider. In this motion, which failed to identify the
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2. In light of our decision upholding the district court's
determination that diversity is lacking "at least as to Lil
Izquierdo," we need not consider whether diversity is also
lacking with respect to the three children.
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applicable procedural rule, appellants argued that the
district court overlooked the first sworn statement attesting
to Lil Izquierdo's intent to make New York her domicile and
reached an erroneous legal conclusion. Appellants supported
the motion to reconsider with the second sworn statement
which made additional conclusory statements as to Lil
Izquierdo's intention. It is plain from the record that the
district court carefully considered these sworn statements in
denying the motion for reconsideration. Moreover, for the
reasons we have already articulated, we cannot find that the
district court erred in reaching the legal conclusion it did.
Under the circumstances, whether we construe the motion to
reconsider as one under Federal Rule Civil Procedure 59(e) or
60(b), we find no abuse of discretion in its denial. See
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Kaercher v. Trustees of Health & Hosps, Inc., 834 F.2d 31, 34
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(1st Cir. 1987) (denial of Rule 59(e) and Rule 60(b) motions
subject to abuse of discretion standard on appeal).3
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3. Contrary to the position taken by appellants, we are not
persuaded that the district court's statement, in its order
denying the motion for reconsideration, that "the moment for
consideration was the first time that [Lil Izquierdo] was
living [in New York]," constitutes a ruling in advance that
appellants are barred from refiling their action in federal
district court. We think that the district court's remarks
are better construed as a reminder that diversity is
determined as of the date an action is commenced and cannot
be created by a change of domicile during the pendency of the
action. In any event, we note that a dismissal for want of
jurisdiction does not preclude a second action where there
are subsequent developments that cure the jurisdictional
deficiency in the first suit. See, e.g., Costello v. United
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States, 365 U.S. 265, 284-88 (1961) (holding that dismissal
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Affirmed. See 1st Cir. R. 27.1.
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of denaturalization proceedings for defective affidavit of
good cause was for lack of jurisdiction and did not bar
subsequent proceeding on proper affidavit); GAF Corp. v.
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United States, 818 F.2d 901, 913-14 (D.C. Cir. 1987) (stating
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that jurisdictional deficiencies may be remedied by
occurrences subsequent to original dismissal); Dozier v. Ford
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Motor Co., 702 F.2d 1189, 1196 (D.C. Cir. 1983) (Wald, J.,
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dissenting) (observing that lack of complete diversity is a
curable defect); 1B James W. Moore et al., Moore's Federal
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Practice 0.405[5] (2d ed. 1993) (stating that a dismissal
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for want of jurisdiction does not preclude a subsequent
action where in the interim facts have occurred which now
establish jurisdiction). We express no opinion on whether a
second action in federal court is precluded here.
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