Izquierdo v. Denton Construction

Opinion

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October 25, 1994        [NOT FOR PUBLICATION]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
                                                     ___   ____   _______

            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
                                       ___ _________     ________________

            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-
            _________    _______________________________
            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
                                                                ___ _____

            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
                      ___ _________

            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
            ___ _______

            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
            ________    ________________________________

            (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
                                            ___  ____  ________    ______
            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.
                                                            __________
            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
                                                           ______    ____
            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
            ________
            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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