Garcia-Perez v. Santaella

          United States Court of Appeals
                     For the First Circuit


No. 03-1670

                 CARLOS A. GARCÍA PÉREZ, ET AL.,

                     Plaintiffs, Appellants,

                               v.

                 ALVARO SANTAELLA, M.D., ET AL.,

                     Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Jay A. Garcia-Gregory, U.S. District Judge]


                             Before

                     Torruella, Circuit Judge,
                  Coffin, Senior Circuit Judge,
                    and Selya, Circuit Judge.



     Joan S. Peters with whom Andrés Guillemard-Noble and Nachman
& Guillemard were on brief for appellants.
     José Héctor Vivas with whom Vivas & Vivas was on brief for
appellee Iván Terón Méndez.
     Raphael Peña Rámon and De Corral & De Mier for appellee
Ashford Presbyterian Community Hospital.



                         April 13, 2004
      COFFIN, Senior Circuit Judge.           Appellants Carlos A. García

Pérez and Gisela M. Baerga Torres, together with their infant

daughter Carla Isabel (collectively, the Garcías), challenge the

district court's determination that they were domiciled in Puerto

Rico when they filed a medical malpractice claim against appellees

Dr. Iván Terón Méndez and Ashford Presbyterian Community Hospital.

The Garcías contend that they were domiciled in Florida at the time

of the filing, thus establishing complete diversity between the

plaintiffs   and    the   defendants    and   conferring   subject   matter

jurisdiction on the district court under 28 U.S.C. § 1332(a)(1).

After deliberating upon this well briefed and argued case, we

conclude that errors of both law and fact require recognition of

Florida as the state of domicile.          We therefore reverse.

                             I.   Background

      The underlying medical malpractice claim arose out of the May

6, 1996, birth of quadruplets to Carlos and Gisela.             At the time,

the Garcías were living in Gurabo, Puerto Rico.            The babies were

premature and only one child - Carla Isabel - survived.                  She

suffered from a variety of complications requiring ongoing and

intensive medical care. In June 1996, having already lost three of

the   quadruplets    while    they     were   in   the   care   of   Ashford

Presbyterian, the Garcías decided to move Carla Isabel to Miami

Children's Hospital.




                                     -2-
     On May 5, 1997, the medical malpractice claim was filed.

Discovery on the merits continued until March 23, 2001, when

appellee Terón Méndez filed a motion to dismiss under Fed. R. Civ.

P. 12(b)(1), alleging that the Garcías were domiciled in Puerto

Rico, and the court therefore lacked subject matter jurisdiction.

Ashford Presbyterian joined this motion.

     A   magistrate   judge's   report   and   recommendation,   issued

February 20, 2002, concluded that the Garcías were domiciled in

Florida at the time the suit was filed and recommended that the

motion to dismiss be denied.     Reviewing the contested portions of

the report and recommendation de novo, see 28 U.S.C. § 636(b)(1),

the district court reached a contrary determination.        The court

noted a series of remaining contacts between the Garcías and Puerto

Rico, supporting each example with a citation to a particular page

and line number of Carlos's deposition, taken on August 8, 2000.

At that time, however, the deposition transcript had not been

submitted to the court. The only portions of the transcript before

the court were five pages submitted with appellants' opposition to

the motion to dismiss, but these did not include several portions

of the deposition cited by appellees. The district court relied on

the appellees' citations.       In total, the district court listed

eleven factors favoring a Puerto Rico domicile, relying not only on




                                  -3-
the citations, but also on the phrasing of appellees' objections to

the magistrate judge's report.1

        Following the court's order of dismissal, appellants moved for

reconsideration.       They pointed out discrepancies between the facts

as described by the district court and the actual deposition

transcript.        Appellants also argued that the court made a legal

error in giving significant weight to Carlos's statement that he

would like to return to Puerto Rico at some undetermined point in

the future.

        Sensing the precarious nature of the court's reliance on their

paraphrasing, appellees submitted the entire deposition transcript

with their opposition to the motion for reconsideration. The court

accepted     the    invitation   and    "carefully   read     the    deposition

testimony provided." It found nothing to change its conclusion and

denied the motion.       This appeal ensued.

                          II.    Standard of Review

     The determination of domicile presents a mixed question of law

and fact.     Bank One, Texas, N.A. v. Montle, 964 F.2d 48, 51 (1st

Cir. 1992).      To the extent that the motion to dismiss called upon

the district court to resolve factual challenges, we will not set

aside    those     findings   unless   clearly   erroneous.         Valentín    v.

Hospital Bella Vista, 254 F.3d 358, 365 (1st Cir. 2001).                       "'A


     1
      We note that seven of the factors rely on the deposition
testimony that the court did not have before it at the time of its
decision.

                                       -4-
finding is clearly erroneous when although there is evidence to

support it, the reviewing court on the entire evidence is left with

the   definite    and    firm     conviction    that    a   mistake    has    been

committed.'"     Lundquist v. Precision Valley Aviation, Inc., 946

F.2d 8, 11 (1st Cir. 1991)(quoting Anderson v. City of Bessemer

City, 470 U.S. 564, 573 (1985)(internal citations omitted)).                   We

review the court's legal conclusions de novo.               Valentín, 254 F.3d

at 365.

                           III.    Law of Domicile

      The   federal     courts    have    jurisdiction      over   controversies

arising between "citizens of different states," provided that the

amount in controversy exceeds $75,000.              28 U.S.C. § 1332(a)(1).

Citizenship is determined by domicile, Lundquist, 946 F.2d at 10,

which can be established by demonstrating that the individual is

physically present in the state and has an intent to remain

indefinitely, Sun Printing & Publ'g Ass'n v. Edwards, 194 U.S. 377,

383 (1904); Hawes v. Club Ecuestre El Comandante, 598 F.2d 698, 701

(1st Cir. 1979).        Once challenged, the party invoking diversity

jurisdiction     must    prove    domicile     by   a   preponderance    of    the

evidence.    Bank One, 964 F.2d at 50.          The key point of inquiry is

whether diversity of citizenship existed at the time the suit was

filed; subsequent events may bear on the sincerity of a professed

intention to remain but are not part of the primary calculus.




                                         -5-
Hawes, 598 F.2d at 700; Miranda v. Miranda, 686 F. Supp. 44, 47

(D.P.R. 1988).

     Courts typically take into account a variety of factors

indicating the extent of a particular party's ties to the purported

domicile.   These include:

     current residence; voting registration and voting
     practices; location of personal and real property;
     location of brokerage and bank accounts; membership
     in unions, fraternal organizations, churches, clubs
     and other associations; place of employment or
     business; driver's license and other automobile
     registration; [and] payment of taxes...

13B Wright, Miller & Cooper, Federal Practice and Procedure § 3612

(2d ed. 1984).   See also Bank One, 964 F.2d at 50; Hawes, 598 F.2d

at 700.   No single factor is dispositive, and the analysis focuses

not simply on the number of contacts with the purported domicile,

but also on their substantive nature.         Lundquist, 946 F.2d at 12

("[D]omicile need not be determined by mere numerical comparison of

the number of factors that may appear to favor each side of the

issue."); see also Leon v. Caribbean Hosp. Corp., 848 F. Supp. 317,

318 (D.P.R. 1994) (favoring ties that "could not be easily undone"

over more easily established ties).

                             IV.   Analysis

     We turn first to two errors of law affecting the baseline of

the district court's analysis.

     First, the court erred when it gave considerable weight to

Carlos's testimony - taken more than three years after the case was


                                   -6-
filed - that he thought "just about every other day" of returning

to   Puerto    Rico.     In   Hawes,      we   determined    that   a    "floating

intention" to return to a former domicile at some unspecified

future date does not prevent a party from acquiring a new domicile.

598 F.2d at 701.         Carlos's vague and noncommittal language is

precisely within the contours of what we consider a floating

intention.       See Valentín,      254    F.3d   at   367   (characterizing      a

floating intention as "[a]n amorphous desire to relocate from one

place to another at an indeterminate future date" and noting that

such an "'indefinite and ambulatory future intention. . . is of no

real significance'")(citing Hardin v. McAvoy, 216 F.2d 399, 403

(5th Cir. 1954)).       As we said in Hawes, an individual is "entitled

to keep [his] options open,"        598 F.2d at 704.         Carlos's statement

should not have been a significant element of the court's analysis.

      Second, the court erred in enunciating the burden of proving

domicile      once   challenged.2      The     correct   burden     of   proof    is

preponderance of the evidence.             Bank One, 964 F.2d at 50.             The

district court's opinion is at best confusing on this issue.                      In

initially setting out the burden, the court correctly stated that


      2
      The initial error seems to have been made in appellees'
motion to dismiss, which cited Alicea-Rivera v. SIMED, 12 F. Supp.
2d 243, 245 (D.P.R. 1998), in support of the assertion that the
plaintiff must prove a change in domicile by clear and convincing
evidence.    Alicea-Rivera incorrectly adopted the clear and
convincing burden of proof from a Second Circuit case analyzing the
law of domicile of New York State.       Id.   Alicea-Rivera is in
conflict with our earlier decision in Bank One, 964 F.2d at 50, and
therefore has no precedential value on the burden of proof issue.

                                       -7-
plaintiffs bore the burden of proving domicile by a preponderance

of the evidence, citing Bank One.           Two paragraphs later, it stated

the burden as that of proving domicile by clear and convincing

evidence.       It cited Valentín, which, however, says nothing about

the nature of the burden.       Shortly thereafter, the court repeated

the clear and convincing evidence standard, erroneously citing Bank

One.       Finally, the court concluded that plaintiffs "have failed to

rebut this evidence [of Puerto Rico domicile] with clear and

convincing proof," immediately following this language with an

invocation      of   "preponderance   of    evidence,"   citing   Francis   v.

Goodman, 81 F.3d 5, 6 (1st Cir. 1996).            Appellants did not raise

the issue below,3 but it is settled in this circuit that an

appellate court has discretion, in exceptional cases, to relieve a

party of forfeiture.        See United States v. La Guardia, 902 F.2d

1010, 1013 (1st Cir. 1990).       This is such a case.      Not only should

the proper burden govern our review, but both courts and lawyers

should be aware of the importance of clarity as to the applicable

burden of proof.         To the extent that the court evaluated the

appellants' evidence under a clear and convincing standard, plain

error occurred.




       3
      Upon questioning at oral argument, both parties agreed that
the burden was preponderance of the evidence. This was a retreat
from appellees' earlier argument in their briefs before this court,
which, like the motion to dismiss, incorrectly stated the burden.

                                      -8-
     We now move on to our factual analysis.            The district court

marshaled a string of factors favoring domicile in Puerto Rico,

which we now review as context for our analysis of factual error.

     In concluding that Carlos "lacked the intent to change his

domicile to Florida," the district court focused on the couple's

remaining contacts in Puerto Rico, which include the fact that at

the time the suit was filed, Carlos was employed by Goldman

Antonetti (a law firm based in Puerto Rico) and traveled to Puerto

Rico for business, that the Garcías rented (rather than sold) their

Gurabo house, and that the family left open two Puerto Rico bank

accounts and made regular use of an ATM card associated with one of

those accounts.    The district court also made much of the family's

interest in a Taco Maker franchise, from which they derived about

16% of their annual reported income for 1997. Carlos was president

of the franchise corporation and Gisela held a contract that paid

her approximately fourteen hundred to fifteen hundred dollars a

month in exchange for services and advice regarding the operation

of the Taco Maker.     The district court also pointed to the couple's

filing   of   income   tax   returns   in    Puerto   Rico    (reporting   the

franchise income).

     As we noted earlier, the district court adopted the appellees'

version of the facts, including citations to portions of Carlos's

deposition    transcript     that   were    not   submitted   to   the   court.

Appellants argue that the district court failed to conduct an


                                     -9-
independent review of the record, misconstrued Carlos's testimony

and relied on irrelevant factors, entirely disregarding their

contrary evidence.       We now consider these contentions.

     A review of the record, including the deposition transcript,

reveals   that   Carlos    and   Gisela    created   substantial    personal,

professional     and    civic    ties     to   Florida   that   significantly

outweighed their residual ties with Puerto Rico.

      First, Carlos and Gisela established that Florida was their

personal and financial base.        By the time the lawsuit was filed,

they had each registered to vote in Florida, acquired Florida

drivers' licenses, sold their car in Puerto Rico, and purchased two

cars in Florida.       In addition, the Garcías rented out their Puerto

Rico house, unfurnished, on an annual basis.4            They opened a Miami

bank account, which became the primary account for the family's

expenses.   The couple did retain a Puerto Rican bank account, but

the district court's reference to "regular" use of the Puerto Rican

ATM card is unsupported by the record.            No plausible construction

of the cited testimony supports calling the use "regular,"5 and no


     4
      In the five years that they lived in Miami, Carlos and Gisela
purchased two homes in Florida and had two more children. In March
1999, Carlos resigned from Goldman Antonetti and joined the Miami
office of Rice Fowler, a law firm based in New Orleans. Although
these events, occurring subsequent to the filing of the lawsuit,
are not the primary focus of our analysis, we note them as
indicative of the sincerity of the family's intent to remain in
Florida, see supra at 5-6.
     5
       The full text of the exchange is as follows:
Q:   Do you have any credit cards issued by banks in Puerto Rico?

                                        -10-
reasonable inference from that portion of the testimony supports a

Puerto Rico domicile.         This was a clearly erroneous conclusion.

      In evaluating the family's financial contacts, the district

court further erred in concluding that the Garcías' Puerto Rico tax

returns implied a Puerto Rico domicile.                Gisela and Carlos used

their Miami address on their return.            The act of filing the return

is not by itself evidence of domicile.                As appellants note, any

individual deriving income from Puerto Rico is required to file a

tax return, regardless of citizenship. Furthermore, the tax return

provides no evidence that Puerto Rico was the appellants' financial

base;     the     reported     income    derived      from    Puerto     Rico   was

approximately 16% of the family's annual income.

        Second,    the    court's   conclusion        that    Carlos's    residual

professional       ties   supported     a    Puerto    Rico    domicile    is   not

substantiated by the evidence.              By May 1997, Carlos had built a

professional foundation for himself in Miami, including studying

for and passing the Florida bar exam, working out of an office in

his home, and spearheading the opening of a branch office for

Goldman Antonetti.           He had, by February, not only explored job



A:   Any what; I am sorry?
Q:   Credit cards?
A:   No. I still have the ATH.
Q:   Okay, the ATM from Banco Popular?
A:   Yes.
Q:   Do you use it in Florida?
A:   No.
Q:   Okay.

                                        -11-
opportunities in Miami but had begun discussions with the head of

his firm's litigation department regarding the branch office.

Although formal approval was not given until shortly after the

complaint was filed, it is clear that Carlos had by that time the

settled       intent     to   practice    law      in   Florida,   with   reasonable

expectation of an association in Florida with his firm.6                        Carlos

testified that he traveled to Puerto Rico for business, in service

to some Puerto Rico clients, on only an "on and off basis."

       Third, the evidence demonstrates that the Garcías' role in the

Taco Maker corporation involved minimal contacts with Puerto Rico

that       were   more   indicative      of   an    investment     interest    than   a

substantial tie.          Carlos testified that Gisela never traveled to

Puerto Rico to render services to the Taco Maker.                    Neither Carlos

nor Gisela was involved in day-to-day operations; Carlos's related

travel was in his capacity as president of the corporation, an

office which neither requires nor suggests that he was domiciled in

Puerto Rico.        The district court seemed to think it notable that

Carlos filed the corporation's Puerto Rico income tax returns, but

this simply demonstrates that he fulfilled what were reasonably his

duties as an officer of a closely-held corporation.                           There is




       6
      Neither party has provided us with the exact date that the
firm formally approved the opening of the Miami office, agreeing
only that it was about one month after Carlos passed the Florida
bar exam in mid-April.

                                          -12-
little support for a Puerto Rico domicile by virtue of these

corporate contacts.

     Of course, not all factors weigh heavily in favor of a Florida

domicile.     But our review indicates to us that, although on the

surface there are ties to Puerto Rico, in every area those ties

appear more     tenuous    as     the   evidence    is      more    fully    revealed.

Financial    ties   were    sharply      confined      to    a     limited       purpose.

Business     relations     were    similarly       restricted        to     infrequent

oversight.    Meanwhile, the ordinary arrangements for settling into

a community were becoming stronger in Florida, by registering to

vote, purchasing cars, and contracting to rent an apartment.                          But

most important was the evidence of an intent to remain in Florida

and earn a livelihood there:            studying for the bar, exploring job

opportunities, planning and receiving encouragement for opening a

branch office for his firm.

     We see the scales in this case as weighted, on the Puerto Rico

side, by formal and attenuated connections, while, on the Florida

side, by deliberate investment of time and energy in preparing for

living and working indefinitely in Florida.

     Appellees offer no arguments that undermine this conclusion.

Their attempt to characterize the relocation as "forced," and

therefore unable to effect a change in domicile, is contrary to

precedent.      Although    the     Garcías    moved     because      of     a    medical

emergency, motive does not defeat a bona fide change in domicile.


                                        -13-
See Hawes, 598 F.2d at 702 (plaintiffs were not prevented from

acquiring new domicile simply because relocation was motivated by

urgent need to seek medical care).          Furthermore, rather than take

steps to move back to Puerto Rico following the baby's release from

the hospital in October 1996, the Garcías strengthened their ties

with Florida, including Carlos's commitment a month later to take

the Florida bar exam.        See Hawes, 598 F.2d at 703-04 (noting that

if Hawes had intended to return to Puerto Rico, "the time to do so

was when her husband left for Mexico [after being discharged from

a rehabilitation center]").

       As far as we can see, the cases relied on by appellees

actually support the Garcías' claim.              Alicea-Rivera involved a

student   who    lived   with   relatives   and   did   not   pay   for    rent,

utilities or phone; he retained his Puerto Rico driver's license

and held only a part-time job that didn't indicate steps toward a

permanent residence.         See Alicea-Rivera, 12 F. Supp. 2d at 246.

This    case    is   quite   inapposite,    relating    primarily     to    the

established principle that out-of-state college students are not

domiciliaries of the state in which they go to school.              Id.

       Likewise, we are somewhat perplexed by appellees' reliance on

Leon, in which the court found that "superficial" ties such as bank

accounts, voter registration and drivers' licenses did not - on

their own - indicate a change of domicile.           Leon, 848 F. Supp. at

318. However, studying for and taking the Florida bar exam is just


                                    -14-
the sort of "complicated" and skilled undertaking that the Leon

court would have found more convincing evidence of a change of

domicile.    Id.   Furthermore, the Leon court observed that:

            [It] is more significant to examine, however,
            the bridges back to Puerto Rico that she
            failed to burn.   She resigned from her job,
            but her employer expected her to return . . .
            . It was her Puerto Rican checking account
            that was routinely as reflected by the
            activity in the check register used. Although
            she rented out a small apartment . . . , she
            left her home, with all of the furniture,
            unoccupied. She did not even discontinue her
            utility services . . . [H]er late model car
            was left in Puerto Rico, where it was ready
            and waiting for her upon her return . . . .
            Her main source of income, social security
            payments, continued to be sent to her Puerto
            Rico address.    Likewise, she did not file
            federal, state or city tax return[s] using her
            Illinois address, in addition to the filing of
            her Puerto Rico income return.

Id.   In the instant case, not one of these "bridges" remained.

      And   finally,   Valentín,   254    F.3d   at   361,   which   at   least

presents comparable facts in that the plaintiff relocated in order

to seek medical treatment, nevertheless involved a situation in

which the plaintiff maintained much stronger connections with

Puerto Rico and failed to establish any of comparable significance

in Florida.     Valentín lived with her sister during her stay in

Florida, and kept the bulk of her personal belongings (including a

car) in Puerto Rico.     Id. at 361-62, 366.      Significantly, Valentín

did not resign from her position as a nurse in Puerto Rico and she

never worked in Florida.     She relied on a combination of sick days


                                   -15-
and unpaid leave to cover her stay.            Carlos, on the other hand,

actually worked in Miami - either from home or at a branch office.

      Correcting for the factual and legal errors, the remaining

evidence predominantly establishes that Florida was the Garcías'

"true, fixed home and principal establishment," to which, whenever

they were absent, they had the intention of returning. 13B Wright,

Miller &   Cooper,     Federal   Practice    and   Procedure,     at   §   3612.

See also Valentín, 254 F.3d at 366.         The ties remaining with Puerto

Rico - ongoing investments and the retention of property in order

to   benefit   from   supplemental    rental   income   -   are   simply    the

vestiges of longtime prior residence on the island . . . and a

nostalgic hope for a far off future.

      In sum, an evaluation of the relevant factors under the proper

burden of proof leads us to the conclusion that the appellants were

domiciled in Florida.

      Reversed.




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