Valentin-De-Jesus v. United Healthcare

United States Court of Appeals
For the First Circuit

No. 00-2184

HELGA E. VALENTIN, A/K/A HELGA E. VALENTIN DE JESUS,

Plaintiff, Appellant,

v.

HOSPITAL BELLA VISTA ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before

Selya, Lynch and Lipez,

Circuit Judges.

Teresa M. García Moll and Moreda & Moreda on brief for
appellant.
Carlos Martínez-Texidor and Martínez-Texidor & Fuster on
brief for appellees.

June 27, 2001
 SELYA, Circuit Judge. Plaintiff-appellant Helga

Valentín, also known as Helga Valentín de Jesús, invites us to

reverse an order of the district court dismissing her medical

malpractice suit for lack of subject-matter jurisdiction. Bound

by a relatively restrictive standard of review, we decline her

invitation.

On December 10, 1998, Valentín sued a cadre of

defendants — divers hospitals, physicians, insurers, and a

health services plan — in the United States District Court for

the District of Puerto Rico. Claiming that she was a citizen of

Florida whereas all the defendants were citizens of Puerto Rico,

the plaintiff premised federal jurisdiction on diversity of

citizenship and the existence of a controversy in the requisite

amount.1 See 28 U.S.C. § 1332(a). Because it is Valentín's

citizenship that is at issue here, we make no attempt to

enumerate, or to differentiate among, the various defendants.

1We note that Valentín's complaint specified residency, not
citizenship, in respect to the individuals named as parties.
Jurisdictionally speaking, residency and citizenship are not
interchangeable, Lundquist v. Precision Valley Aviation, Inc.,
946 F.2d 8, 10 (1st Cir. 1991)(per curiam), and a complaint that
seeks to assert diversity jurisdiction based only on the
parties' residences is subject to dismissal. Acting
pragmatically, the district court assumed that the plaintiff
meant citizenship when she said residency, and grappled with the
merits of the jurisdictional dispute. We emulate this example.

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 For federal jurisdictional purposes, diversity of

citizenship must be determined as of the time of suit. Bank One

v. Montle, 964 F.2d 48, 49 (1st Cir. 1992). Thus, the critical

date here was December 10, 1998, and the plaintiff's

jurisdictional assertion hinged upon her contention that she was

a citizen of Florida at that time. The defendants scoffed at

this contention and, after conducting some preliminary

discovery, moved to dismiss for want of subject-matter

jurisdiction. See Fed. R. Civ. P. 12(b)(1). They took the

position that the plaintiff's true home was in Puerto Rico.

According to her own account, derived from her

deposition testimony, the plaintiff was born in Mayagüez, Puerto

Rico, in 1968. Her family subsequently moved to Yauco. She

lived there with her mother and studied nursing at a local

university. When she completed her studies, she returned to

Mayagüez and began working at the Mayagüez Medical Center (MMC)

in late 1992.

At some point, the plaintiff's sister married and moved

to Florida. After toiling at MMC for over five years, the

plaintiff, using her accrued vacation time, spent a month

visiting her sister and brother-in-law. During that visit, she

experienced acute abdominal pain. Doctors in Florida informed

her that she needed extensive tests and, quite likely, surgery.

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Cognizant of the requirements of her health insurance plan, she

returned to Puerto Rico for follow-up care. Surgery proved

necessary during the winter of 1997-1998. When performed, it

went poorly.

The ensuing complications prompted the plaintiff to

repair to Florida in April of 1998, seeking more sophisticated

medical care. Her sister and brother-in-law again provided her

with a place to live. When she left for Florida, however, she

did not terminate her employment with MMC. To the contrary, her

co-workers pooled their accumulated sick leave (totaling eighty-

four days) and donated it to her so that she could pursue

treatment alternatives without losing her job.

Even after the plaintiff had exhausted all available

sick leave, she did not resign. Instead, she requested that MMC

grant her an indefinite period of unpaid leave. MMC acquiesced.

Although the plaintiff never returned to work at MMC, she did

not sever that tie until March of 1999 — some three months after

she filed the instant action.

These facts led the parties to opposite conclusions

about the plaintiff's citizenship. On January 24, 2000, the

most aggressive of the defendants, United Healthcare Plans of

Puerto Rico (UHP), filed a motion to dismiss under Rule

12(b)(1), in which it asserted an absence of diversity

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jurisdiction. Several other defendants filed motions joining

and/or adopting this motion. The plaintiff opposed these

initiatives, maintaining that she had become a citizen of

Florida (and, therefore, that jurisdiction was properly laid in

the federal court). In an effort to streamline the proceedings,

the district court gave the remaining defendants until March 17

to stake out their positions vis-á-vis jurisdiction and

scheduled an evidentiary hearing for May 6.2

One additional defendant responded to the court's

invitation and filed a motion to dismiss within the specified

interval. As the date set for the evidentiary hearing

approached, the plaintiff, by motion filed on May 1, 2000, asked

the court to "suspend" that hearing and determine the existence

vel non of jurisdiction on the parties' written submissions.

The court, apparently yielding to this entreaty, proceeded to

decide the jurisdictional issue on the papers.

In a carefully considered ten-page opinion, the court

determined that the plaintiff went to Florida in mid-1998 with

2
The court apparently set the hearing date so far in the
future because the main protagonists to that point — the
plaintiff and UHP — had filed a joint motion for voluntary
dismissal (without prejudice). In order to effectuate that
agreement and drop UHP from the case, the movants needed
permission from the other defendants, see Fed. R. Civ. P.
41(a)(1), which they had not yet obtained. This motion
eventually became moot when the district court determined that
it lacked subject-matter jurisdiction.

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the intent of returning to Puerto Rico; that her intent remained

unchanged on December 10, 1998; and that, therefore, she was

still a citizen of Puerto Rico when she filed suit. Valentín v.

UHP, No. 98-2382, slip op. at 10-11 (D.P.R. July 27, 2000)

(unpublished). In the court's view, the evidence showed only

that the plaintiff "returned to Florida in 1998 to receive

medical treatment and that she harbored the intention and desire

of living in Florida at some time in the future." Id. at 10.

Because even "[a] definite and sincere intention to make a place

one's home at some time in the future is not enough to make that

place an individual's present domicile," the court found the

evidence insufficient to support the plaintiff's claim of

Florida citizenship. Id.

The plaintiff's attack on the district court's ruling

is vigorous, but largely misdirected. Her principal arguments

rest on serial misconceptions of the proper protocol for

determining subject-matter jurisdiction and the level of

appellate review that applies thereafter. We first expose these

misconceptions and then use the correct standards to resolve

this appeal.

The proper vehicle for challenging a court's subject-

matter jurisdiction is Federal Rule of Civil Procedure 12(b)(1).

This rule is a large umbrella, overspreading a variety of

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different types of challenges to subject-matter jurisdiction.

Some challenges — those grounded in considerations of ripeness,

mootness, sovereign immunity, and the existence of federal

question jurisdiction are good examples, see, e.g., Ernst &

Young v. Depositors Econ. Prot. Corp., 45 F.3d 530, 534 (1st

Cir. 1995) (ripeness); D.H.L. Assocs., Inc. v. O'Gorman, 199

F.3d 50, 54 (1st Cir. 1999) (mootness); Murphy v. United States,

45 F.3d 520, 522 (1st Cir. 1995) (sovereign immunity); BIW

Deceived v. Local S6, 132 F.3d 824, 830-31 (1st Cir. 1997)

(federal question) — present what amount to pure (or nearly

pure) questions of law, and thus engender de novo review. Those

types of challenges are beyond the scope of this opinion.

In more prosaic situations, such as when a defendant

challenges the existence vel non of diversity jurisdiction, the

challenge can be launched in either of two formats. See 2 James

Wm. Moore et al., Moore's Federal Practice ¶ 12.30 (3d ed. 1999)

(outlining procedures for resolving challenges to subject-matter

jurisdiction). We explore that dichotomy.

The first way is to mount a challenge which accepts the

plaintiff's version of jurisdictionally-significant facts as

true and addresses their sufficiency, thus requiring the court

to assess whether the plaintiff has propounded an adequate basis

for subject-matter jurisdiction. Ohio Nat'l Life Ins. Co. v.

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United States, 922 F.2d 320, 325 (6th Cir. 1990); Menchaca v.

Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980). In

performing this task, the court must credit the plaintiff's

well-pleaded factual allegations (usually taken from the

complaint, but sometimes augmented by an explanatory affidavit

or other repository of uncontested facts), draw all reasonable

inferences from them in her favor, and dispose of the challenge

accordingly. See Herbert v. Nat'l Acad. of Scis., 974 F.2d 192,

197 (D.C. Cir. 1992); Lawrence v. Dunbar, 919 F.2d 1525, 1528-29

(11th Cir. 1990) (per curiam); see also Barrett v. Lombardi, 239

F.3d 23, 30-31 (1st Cir. 2001) (assuming truth of uncontested

facts set forth in plaintiff's explanatory affidavit). For ease

in classification, we shall call this type of challenge a

"sufficiency challenge."

The second way to engage the gears of Rule 12(b)(1) is

by controverting the accuracy (rather than the sufficiency) of

the jurisdictional facts asserted by the plaintiff and

proffering materials of evidentiary quality in support of that

position. Unlike, say, a motion for summary judgment under

Federal Rule of Civil Procedure 56(c), this type of challenge

under Federal Rule of Civil Procedure 12(b)(1) — which we shall

call a "factual challenge" — permits (indeed, demands)

differential factfinding. Thus, the plaintiff's jurisdictional

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averments are entitled to no presumptive weight; the court must

address the merits of the jurisdictional claim by resolving the

factual disputes between the parties. See Garcia v. Copenhaver,

Bell & Assocs., 104 F.3d 1256, 1261 (11th Cir. 1997). In

conducting this inquiry, the court enjoys broad authority to

order discovery, consider extrinsic evidence, and hold

evidentiary hearings in order to determine its own jurisdiction.3

See Lawrence, 919 F.2d at 1529; Rosales v. United States, 824

F.2d 799, 803 (9th Cir. 1987).

The rationale for this praxis is obvious. A court's

authority to hear a particular case is a necessary precondition

to the proper performance of the judicial function. Thus, when

a factbound jurisdictional question looms, a court must be

allowed considerable leeway in weighing the proof, drawing

reasonable inferences, and satisfying itself that subject-matter

3We note that there is an exception to this praxis for cases
in which the jurisdictional facts, though genuinely disputed,
are inextricably intertwined with the merits of the case. In
that event, the court may defer resolution of the jurisdictional
issue until the time of trial. See Bell v. United States, 127
F.3d 1226, 1228 (10th Cir. 1997); cf. Foster-Miller, Inc. v.
Babcock & Wilcox, 46 F.3d 138, 146-47 (1st Cir. 1995)
(discussing analogous problem in context of personal
jurisdiction). Here, however, the only jurisdictional fact at
issue is the plaintiff's citizenship — a fact utterly irrelevant
to the substance of her malpractice claim. Hence, the exception
does not apply.

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jurisdiction has attached. See Williamson v. Tucker, 645 F.2d

404, 412-13 (5th Cir. 1981).

The relevance of this dichotomy is readily apparent

here. The motions to dismiss in this case plainly constitute

factual challenges: they place in issue the accuracy, as

opposed to the sufficiency, of the plaintiff's jurisdictional

allegation. The plaintiff blinks this reality, arguing that the

district court should have viewed the facts in the light most

favorable to her position and, in a misguided effort to

reinforce that point, repeatedly characterizes the court's order

as a grant of summary judgment. E.g., Appellant's Br. at 1, 16-

18, 25.

We flatly reject this revisionism. As said, the

motions before the district court were factual challenges under

Rule 12(b)(1). It is pellucid that a trial court's approach to

a Rule 12(b)(1) motion which asserts a factual challenge is

quite different from its approach to a motion for summary

judgment. See Ohio Nat'l Life, 922 F.2d at 324-25; see also

Kamen v. AT&T Co., 791 F.2d 1006, 1011 (2d Cir. 1986)

(explaining that a district court cannot convert a factual

challenge under Rule 12(b)(1) into a summary judgment motion).

The plaintiff, therefore, is fishing in an empty stream when she

attempts to discredit the lower court's decision by adverting to

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a wholly inapplicable standard used for adjudicating summary

judgment motions (under which the existence of a genuine issue

of material fact ordinarily defeats the motion).

The rule of decision applicable to factual challenges

under Rule 12(b)(1) is unaffected by the district court's

cancellation of the scheduled evidentiary hearing and its

subsequent adjudication of the jurisdictional issue on the

papers. A court sometimes may decide factual challenges under

Rule 12(b)(1) without convening an evidentiary hearing. E.g.,

Zappia Middle E. Constr. Co. v. Emirate of Abu Dhabi, 215 F.3d

247, 253 (2d Cir. 2000). The key considerations are whether the

parties have had a full and fair opportunity to present relevant

facts and arguments, and whether either party seasonably

requested an evidentiary hearing. Cf. Auode v. Mobil Oil Corp.,

892 F.2d 1115, 1120 (1st Cir. 1989) (upholding dismissal of suit

without evidentiary hearing because, inter alia, motions to

dismiss generally do not necessitate evidentiary hearings, and

in all events, the appellant had not requested such a hearing).

Where, as here, the parties were afforded ample time

to take depositions, compile written submissions, and prepare

briefs, they had a sufficient opportunity to be heard. See

generally Fed. R. Civ. P. 43(e) (authorizing federal district

courts to "hear" motions and determine ancillary facts on

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affidavits or depositions). This opportunity, coupled with the

fact that the plaintiff herself exhorted the district court to

abandon its plan to hold an evidentiary hearing, sounds the

death knell for the plaintiff's argument. Under the

circumstances, we think that the plaintiff is estopped from

asserting before us that the district court blundered in failing

to convene an evidentiary hearing. After all, a party who

requests a court to take a specific course of action ordinarily

cannot be heard to complain when the court obliges. E.g., John

Zink Co. v. Zink, 241 F.3d 1256, 1259 (10th Cir. 2001); United

States v. Coady, 809 F.2d 119, 121 (1st Cir. 1987). We

conclude, therefore, that the court correctly proceeded to find

the facts without holding an evidentiary hearing.

The plaintiff's second misconception relates to the

applicable standard of appellate review. That standard, too,

depends on whether a challenge is addressed to the sufficiency

of the facts upon which the plaintiff's jurisdictional averments

rest or the accuracy of those facts. See Thompson v. Franklin,

15 F.3d 245, 249 (2d Cir. 1994). As noted, the district court

disposes of a Rule 12(b)(1) sufficiency challenge on the basis

of the plaintiff's version of the relevant events, taking the

well-pleaded facts as true and drawing all reasonable inferences

in favor of the pleader. Because the facts are not in issue,

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the court's determination engenders de novo review. See

Spielman v. Genzyme Corp., ___ F.3d ___, ___ (1st Cir. 2001)

[No. 00-1775, slip op. at 7]; Corrada Betances v. Sea-Land

Serv., Inc., 248 F.3d 40, 44 (1st Cir. 2001).

In contrast, a district court faced with a factual

challenge under Rule 12(b)(1) ordinarily must resolve disputed

facts (or, at least, choose among competing inferences from

subsidiary facts). On appeal, such findings will be set aside

only if clearly erroneous. Herbert, 974 F.2d at 197. Even

though the question of domicile — the legal status that lies at

the heart of a determination of citizenship — is a mixed

question of law and fact, the same deferential standard of

review endures. See Hawes v. Club Ecuestre El Comandante, 598

F.2d 698, 702 (1st Cir. 1979) (reviewing such a determination

for clear error); see also In re Extradition of Howard, 996 F.2d

1320, 1328 (1st Cir. 1993) (noting that appellate courts

normally review fact-sensitive "mixed" questions under the

clearly erroneous standard).

Of course, once the court has found the facts, its

ultimate legal conclusion is subject to de novo review. See

generally Ornelas v. United States, 517 U.S. 690, 696-99 (1996)

(discussing appropriateness of de novo review in determining

whether a set of facts, once established, satisfies a particular

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legal standard). Thus, in Hogar Agua Y Vida En El Desierto,

Inc. v. Suarez-Medina, 36 F.3d 177, 180-81 (1st Cir. 1994), the

district court held an evidentiary hearing on a Rule 12(b)(1)

motion and found the jurisdictionally-significant facts. On

appeal, however the facts, as found, were not contested, and

thus, we used a de novo standard of review. See id. at 181

("Since the only dispute on appeal concerns the legal

sufficiency of undisputed jurisdictional facts, we review the

Rule 12(b)(1) dismissal de novo."). This aptly illustrates the

shifting standards of review that sometimes operate within the

confines of a single jurisdictional inquiry.

The proper standard of review in this case is

straightforward. The lower court addressed a factual challenge

under Rule 12(b)(1) — a challenge that required it to find the

facts, choose among conflicting inferences, and make credibility

judgments. Accordingly, we must accept the court's findings and

the conclusions drawn therefrom unless the whole of the record

leaves us with "a strong, unyielding belief that a mistake has

been made." Cumpiano v. Banco Santander, 902 F.2d 148, 152 (1st

Cir. 1990) (explicating nature of "clearly erroneous" standard).

We then must determine whether the facts, as supportably found,

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justify the court's ultimate legal conclusion.4 As we explain

below, the district court's decision easily survives scrutiny

under these criteria.

In order to sustain diversity jurisdiction in the

circumstances of this case, the plaintiff had to demonstrate,

inter alia, that she was a citizen of Florida. See 28 U.S.C. §

1332(a)(1); see also Toste Farm Corp. v. Hadbury, Inc., 70 F.3d

640, 642 (1st Cir. 1995) (explaining that the party invoking

diversity jurisdiction bears the burden of demonstrating

complete diversity). For purposes of diversity jurisdiction,

citizenship usually is equated with domicile. Rodriguez-Diaz v.

Sierra-Martinez, 853 F.2d 1027, 1029 (1st Cir. 1988). A

person's domicile is the "place where he has his true, fixed

home and principal establishment, and to which, whenever he is

absent, he has the intention of returning." Id. (citation and

internal quotation marks omitted). Domicile requires both

physical presence in a place and the intent to make that place

one's home. Id. It follows logically that in order to change

4We note that Valentín, despite her obvious unhappiness with
the lower court's decision, makes no developed argument that the
facts as found do not warrant the legal conclusion reached.
That point is, therefore, by the boards. See United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (explaining that issues
adverted to in a perfunctory fashion on appeal, but
unaccompanied by developed argumentation, are deemed abandoned).

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domiciles, a person must move to a new state in which she

intends to remain indefinitely. Hawes, 598 F.2d at 701.

In this instance, the court below relied chiefly on the

facts catalogued in the plaintiff's deposition to find that she

had not become a Florida domiciliary on or before December 10,

1998. Since a party's former domicile persists until a new one

is acquired, id., the district court reasoned that the plaintiff

was a citizen of Puerto Rico on the critical date (and that,

therefore, complete diversity was absent). Valentín, slip op.

at 10-11. In reaching this conclusion, the court weighted

heavily the undisputed fact that the plaintiff did not quit her

job at MMC until some time in 1999.5 Id. at 8. The court also

emphasized that the plaintiff left the bulk of her belongings at

her residence in Mayagüez when she journeyed to Florida, that

she kept a car registered there, and that she maintained a

Puerto Rico bank account until some time in 1999. Id. at 8-9.

The plaintiff complains bitterly that she offered

explanations for these facts and asserts that there was other

5 Although the plaintiff asserted that she withheld her
resignation because she wanted to retain her medical insurance,
the court discounted this explanation. Valentín, slip op. at 8.
This credibility call was well within the court's proper
province. See, e.g., In re Tully, 818 F.2d 106, 109 (1st Cir.
1987) (discussing trial right to assess credibility when finding
facts on a paper record). Moreover, the call was understandable
here, since the record contains evidence that the plaintiff's
coverage lapsed in November 1998.

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evidence that pointed to the opposite conclusion. That is true

as far as it goes — but it does not take the plaintiff very far.

The lower court gave meticulous consideration to the plaintiff's

explanations, but found them wanting. E.g., supra note 5. The

court paid similar heed to the evidence favorable to the

plaintiff's position: the plaintiff had obtained a Florida

driver's license on May 12, 1998; at about the same time, she

had received a charge card from a Florida bank and had applied

for a few nursing jobs in Florida (although she was not

authorized to practice there); she took the examination for a

Florida nursing license sometime in 1998 but failed to pass; and

she took Florida's test to become a certified nursing assistant

three times — the dates are obscure — until she finally passed

that test in late 1999.6 See id. at 7-8. In the end, however,

the court concluded that these contacts revealed no more than a

desultory desire to relocate to Florida at some indefinite

future time. Id. at 9-10.

From a legal standpoint, we discern no error. An

amorphous desire to relocate from one place to another at an

6
The plaintiff also registered to vote in Florida, but could
not say, though pressed, whether this occurred before or after
December 10, 1998. In all events, she never voted there, and
she was registered to vote in Puerto Rico throughout 1998. All
in all, this evidence hurts, rather than helps, the plaintiff's
cause.

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indeterminate future date does not suffice to effect a change of

domicile. E.g., Hendry v. Masonite Corp., 455 F.2d 955, 956

(5th Cir. 1972) (per curiam). A party only can have one

domicile at a time. Bank One, 964 F.2d at 53. To effectuate a

change in that domicile (and, thus, a change in citizenship),

the law requires that both residency and the intent to sustain

that residency coexist. Hawes, 598 F.2d at 701. It follows

inexorably, as night follows day, that "a mere detached,

indefinite and ambulatory future intention to possibly or

probably effect a change of domicile . . . is of no real

significance" in solving the jurisdictional riddle. Hardin v.

McAvoy, 216 F.2d 399, 403 (5th Cir. 1954).

From a factual standpoint, the plaintiff's protest is

equally unavailing. Under the clearly erroneous standard of

review, an appellate court simply cannot supplant the district

court's perspective with its own, notwithstanding that the

members of the appellate panel, if writing on a pristine page,

might have derived a different set of conclusions from the same

underlying facts. E.g., Jackson v. United States, 156 F.3d 230,

233-34 (1st Cir. 1998). To the contrary, the case law makes

clear that a district court's choice between two plausible, but

conflicting, interpretations of a factual scenario cannot amount

to clear error. E.g., Sierra Fria Corp. v. Donald J. Evans,

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P.C., 127 F.3d 175, 182-83 (1st Cir. 1997); United States v.

Ruiz, 905 F.2d 499, 508 (1st Cir. 1990). This principle obtains

here: bearing in mind that the plaintiffs primary purpose in

going to Florida in April of 1998 — to secure advanced medical

treatment for the complications arising out of her surgery — was

fully consistent with transient status as opposed to outright

relocation, we cannot say that the district court clearly erred

in concluding that the plaintiff had not become a Florida

citizen on or before December 10 of that year.

We need go no further.7 Depending on the listener, the

same set of facts often tells many different stories. To the

district court, the facts here signified that the plaintiff, at

the time she filed suit, harbored a vaguely defined inclination

to move to Florida at some point in the not-too-distant future

— but no more. This was a reasonable, though not inevitable,

inference, and we decline to disturb it. Accordingly, we affirm

the district court's decision that it lacked subject-matter

jurisdiction.

7
We have been informed that, during the pendency of this
appeal, the plaintiff filed a new action in the district court,
reasserting the existence of diversity jurisdiction. Although
we recognize that a plaintiff may, under certain circumstances,
commence a second action when subsequent developments cure a
preexisting jurisdictional defect, e.g., GAF Corp. v. United
States, 818 F.2d 901, 913-14 (D.C. Cir. 1987), we take no view
as to either the legitimacy of Valentín's new action or the
merits of her restated jurisdictional averments.

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Affirmed.

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