Freidrich v. Davis

989 F. Supp. 2d 440, 2013 WL 6667510, 2013 U.S. Dist. LEXIS 177280
CourtDistrict Court, E.D. Pennsylvania
DecidedDecember 18, 2013
DocketCivil Action No. 12-5604
StatusPublished
Cited by2 cases

This text of 989 F. Supp. 2d 440 (Freidrich v. Davis) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Freidrich v. Davis, 989 F. Supp. 2d 440, 2013 WL 6667510, 2013 U.S. Dist. LEXIS 177280 (E.D. Pa. 2013).

Opinion

MEMORANDUM

ANITA B. BRODY, District Judge.

Plaintiff Carolyn Freidrich (“Freidrich”) alleges that Defendant Thomas Davis (“Davis”) fell on and broke her arm during a December 29, 2010 flight from Philadelphia, Pennsylvania to Munich, Germany. Freidrich brings suit against Davis in federal court on the basis of diversity jurisdiction under 28 U.S.C. § 1332. Davis moves to dismiss the suit for lack of subject matter jurisdiction, arguing that Freidrich fails to establish diversity of citi[442]*442zenship between the parties.1 Based on the evidence presented at the November 20, 2013 hearing, I will grant Davis’s motion for the reasons discussed below.

I. LEGAL STANDARD

The party invoking diversity jurisdiction bears the burden of proof. McNutt v. Gen. Motors Acceptance Corp. of Indiana, 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Samuel-Bassett v. KIA Motors Am., Inc., 357 F.3d 392, 396 (3d Cir.2004). A party meets this burden by proving diversity of citizenship between the parties by a preponderance of the evidence. McCann v. Newman Irrevocable Trust, 458 F.3d 281, 290 (3d Cir.2006).

II. FINDINGS OF FACT

In my July 11, 2013 order, I granted Davis’s motion to dismiss to the extent that if either party is domiciled in Germany, I lack subject matter jurisdiction. I directed the parties to take jurisdictional discovery into the domicile of Freidrich and Davis. After reviewing the evidence submitted at the November 20, 2013 hearing, I now make the following findings of fact:

1. Both Freidrich and Davis are American citizens.
2. Davis was born in June 1951 in Harrisburg, Pennsylvania.2
3. From 1985 to 1996, Davis lived in a home he owned at 108 Blacksmith Road, Camp Hill, Pennsylvania.
4. In 1996, Davis moved from Pennsylvania to Germany. Since 1996, he has continuously resided in Germany with the exception of a six-month period in 1999 when he temporarily returned to Pennsylvania for work.
5. In September 1999, Davis sold his home at 108 Blacksmith Road. He currently owns no property in Pennsylvania.
6. In July 2005, after deciding to remain in Germany, Davis and his wife purchased a home at Hintere Gerbergass 7, Nordlingen, Germany. They continue to reside there.
7. Since 1999, Davis has owned his own consulting company, Davis Consulting, a German corporation with exclusively German customers.
8. From 2000 to 2011, Davis filed German tax returns using a German address.3
9. Davis holds a German driver’s license issued in February 1998.
10. Davis holds a German residency permit issued in October 2003.
11. Since 2009, Davis has visited the United States approximately twice a year for seven to ten days at a time primarily for the purpose of [443]*443visiting family in the Mechanics-burg, Pennsylvania area.
12. When he visits Pennsylvania, Davis stays with either his mother-in-law in a one-bedroom apartment at 5225 Wilson Lane, Mechanicsburg, Pennsylvania, or with his mother in a two-bedroom cottage in a Mechanicsburg, Pennsylvania retirement community.
13. Davis votes in U.S. national elections by absentee ballot in Cumberland County, Pennsylvania. In September 2012, Davis filed a Federal Post Card Application Voter Registration and Absentee Ballot Request. Davis listed Hintere Gerbergass 7, Nordlingen, Germany as his current address. Davis listed his mother-in-law’s Mechanicsburg, Pennsylvania address as his U.S. address for voting purposes.
14. Davis checked a box on the Registration and Ballot Request form that reads: “I am a U.S. citizen residing ■ outside the U.S., and I intend to return.”
15. Davis holds a Pennsylvania driver’s license issued in August 2011. The license lists his mother-in-law’s Mechanicsburg, Pennsylvania address.
16. From 2000 to 2012, Davis filed U.S. tax returns using a .German address.
17. Davis has a 401K retirement account with American Express.4 Davis also has a bank account in Pennsylvania with Santander Bank that he keeps in order to access U.S. currency.
18. Davis and his wife consulted local German authorities about becoming German citizens, but he has retained his American citizenship.
19. At his deposition, Davis testified that he intends to remain in Germany for the rest of his life. He also testified that he and his wife discussed the issue and jointly decided to remain ' in Germany. Davis testified that his friends and his life are in Germany.

III. DISCUSSION

Freidrich alleges that diversity jurisdiction exists under 28 U.S.C. § 1332 because she and Davis are “citizens of different States.” 28 U.S.C. § 1332(a)(1). Specifically, she alleges that she is citizen of Ohio and Davis is a citizen of Pennsylvania. Davis argues that both he and Freidrich are American citizens domiciled in Germany and thus not citizens of any state for the purposes of diversity jurisdiction.

Natural persons can be sued in federal court under the diversity jurisdiction statute if they are either “citizens of a State,” see 28 U.S.C. § 1332(a)(1), or “citizens or subjects of a foreign state,” see id. § 1332(a)(2). “In order to be a citizen of a State within the meaning of the diversity statute, a natural person must be both a citizen of the United States and be domiciled within the State.” Newmark-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 828, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989).5 Important to this case, an American citizen domiciled abroad is not domiciled in a par[444]*444ticular state, and therefore such a person is not a citizen of any state — “stateless”— for purposes of diversity jurisdiction. Swiger v. Allegheny Energy, Inc., 540 F.3d 179, 184 (3d Cir.2008). Thus, American citizens domiciled abroad cannot sue or be sued in federal court under the diversity jurisdiction statute because they are neither “citizens of a State,” see 28 U.S.C.

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989 F. Supp. 2d 440, 2013 WL 6667510, 2013 U.S. Dist. LEXIS 177280, Counsel Stack Legal Research, https://law.counselstack.com/opinion/freidrich-v-davis-paed-2013.