United States Court of Appeals
For the First Circuit
No. 09-1354
KEVIN D. HALL,
Plaintiff, Appellant,
v.
JOHN CURRAN,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph N. LaPlante, U.S. District Judge]
Before
Boudin, Selya and Howard,
Circuit Judges.
Kevin D. Hall on brief pro se.
March 24, 2010
Per Curiam. Federal courts are courts of limited
jurisdiction. A cause of action may be maintained in federal
court only if it involves a question of federal law, or if the
controversy is between citizens of different states and the
amount in controversy exceeds $75,000. 28 U.S.C. §§ 1331,
1332. This pro se prisoner's appeal raises the question of how
citizenship of an incarcerated person is determined for
diversity jurisdiction purposes under 28 U.S.C. § 1332(a)(1).
We adopt the prevailing test articulated in Smith v. Cummings,
445 F.3d 1254 (10th Cir. 2006), and affirm the district court's
dismissal of appellant's complaint for lack of subject matter
jurisdiction.
Appellant Kevin D. Hall lived in New Hampshire prior
to his incarceration. After he was transferred to Sing Sing
penitentiary in New York State, Hall filed suit in federal
district court against an attorney for the New Hampshire
Department of Corrections ("DOC"). Hall's complaint alleged
that this attorney had reneged on a promise in an earlier
litigation (initiated when Hall was imprisoned in New
Hampshire) to provide Hall with copies of his medical records
in exchange for executing the forms that released those records
to the attorney.
Hall's complaint alleged only state-law claims for
fraud, breach of contract, and tortious interference with
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beneficial contractual relations, and sought damages of $10
million. The DOC attorney was the sole defendant; he worked
and resided in New Hampshire and, for all intents and purposes,
was a citizen of that state. No federal question having been
alleged, jurisdiction therefore depended on diversity of
citizenship and an amount in controversy in excess of $75,000.
28 U.S.C. §§ 1331, 1332.
After completing his initial review under 28 U.S.C.
§ 1915A and New Hampshire Local Rule 4.3(d)(2), the magistrate
judge recommended that the complaint be dismissed for lack of
subject matter jurisdiction because the controversy alleged was
not between citizens of different states. Hall timely objected
and claimed that he would submit proof of his New York State
citizenship. Besides his unsupported statement that he had
"agreed to a civil commitment placement" in New York State
after his release from custody, Hall offered no evidence. The
district court, on de novo review, dismissed the complaint.
Under generally accepted principles, citizenship is
determined by domicile, which can be established by
demonstrating that the individual is physically present in the
state and has an intent to remain indefinitely. Garcia Perez
v. Santaella, 364 F.3d 348, 350 (1st Cir. 2004); Rodriguez-Diaz
v. Sierra-Martinez, 853 F.2d 1027, 1029 (1st Cir. 1988). In
ordinary circumstances, all that is needed to change one's
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domicile is physical presence in the new state and the intent
to make that state one's home. E.g., Rodriguez-Diaz, 853 F.2d
at 1029.
Domicile is determined at the time the suit is filed.
Garcia Perez, 346 F.3d at 350-51. "Once challenged, the party
invoking diversity jurisdiction must prove domicile by a
preponderance of the evidence." Id. at 350 (citing Bank One,
Tex., N.A. v. Montle, 964 F.2d 48, 50 (1st Cir. 1992)).
In cases involving prisoners, the courts presume that
the prisoner remains a citizen of the state where he was
domiciled before his incarceration, even if he is subsequently
incarcerated in a different state. Smith, 445 F.3d at 1260
(citing Sullivan v. Freeman, 944 F.2d 334, 337 (9th Cir.
1991)). That presumption is rebuttable, however. Stifel v.
Hopkins, 477 F.2d 1116, 1126-27 (6th Cir. 1973) ("a litigant
will not be precluded from establishing a domicile within a
state for purposes of diversity jurisdiction solely because his
presence there initially resulted from circumstances beyond his
control"). In order to overcome the presumption, the prisoner
must offer more than conclusory statements and unsupported
allegations. "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."
Garcia Perez, 364 F.3d at 351 (citing Lundquist v. Precision
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Valley Aviation, Inc., 946 F.2d 8, 12 (1st Cir. 1991), and 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)). Relevant factors for the district
court to consider include "the prisoner's declaration of
intentions, 'the possibility of parole ..., the manner in which
[he] has ordered his personal and business affairs, and any
other factors that are relevant to corroboration of [the
prisoner's] statements.'" Smith, 445 F.3d at 1260 (quoting
Stifel, 477 F.2d at 1126-27). See also Valedon Martinez v.
Hosp. Presbiteriano de la Comunidad, Inc., 806 F.2d 1128, 1132
(1st Cir. 1986) ("All that is required is that the court afford
the nonmoving party an ample opportunity to secure and present
evidence relevant to the existence of jurisdiction.")
(citations and quotations marks omitted).
In this matter, the district court gave Hall ample
opportunity to present evidence to establish his citizenship in
New York State. Although Hall promised to submit proof of his
new domicile, he failed to do so. Because Hall failed to rebut
the presumption that he is a citizen of New Hampshire, his
domicile prior to his incarceration, there was no diversity of
citizenship between the parties. The district court properly
dismissed Hall's complaint for lack of subject matter
jurisdiction.
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Affirmed.
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