King v. Cessna Aircraft Co.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCT 24, 2007
No. 06-10519 THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 03-20482-CV-FAM

JACK KING, as personal representative of
the Estate of Jessica King, deceased,
ANETTE FORSMAN, individually and/or
personal representative and/or as the Person
legally authorized under applicable law to
bring this wrongful death case for herself,
all potential beneficiaries and/or the Estate
of Robin Forsman, deceased, et al.,

Plaintiffs-Appellants,
versus

CESSNA AIRCRAFT COMPANY, a foreign corporation,

Defendant-Appellee.

________________________

No. 06-10994
________________________

D. C. Docket No. 03-22669-CV-FAM
BARBARA BREGA, individually, and/or as
Personal Representative and/or as the
persons legally authorized under applicable
law to bring this wrongful death case for
themselves, all potential beneficiaries and/or
the Estate of Stefano Romanello, deceased,

Plaintiff-Appellant,

versus

CESSNA AIRCRAFT CO., a Kansas corporation,
JEFFERSEN SANDERSON, INC., a Delaware
corporation, d.b.a. Jeppesen Company,

Defendants-Appellees.

________________________

Appeals from the United States District Court
for the Southern District of Florida
_________________________

(October 24, 2007)

Before CARNES and WILSON, Circuit Judges, and STAGG,* District Judge.

CARNES, Circuit Judge:

These cases arise out of a tragic accident that occurred one foggy morning in

October of 2001 at the Linate airport in Milan, Italy. A private Cessna jet operated

by Air Evex, a German charter company, made a wrong turn, taxiing toward an

*
Honorable Tom Stagg, United States District Judge for the Western District of
Louisiana, sitting by designation.

2
active runway. After air traffic controllers apparently failed to make the problem

clear to the plane’s pilots, the Air Evex jet collided with a Scandinavian Air

Systems jet that was just taking flight. One hundred and eighteen people died,

including everyone on board both planes and four people on the ground. Another

person was seriously injured. It was the deadliest aviation disaster in Italian

history.

In addition to litigation that is ongoing in the Italian courts, lawsuits were

filed in the Southern District of Florida against Cessna Aircraft Company, an

American corporation, by the estates of seventy victims and one personal injury

claimant. The decedents in sixty-nine of the estates were European citizens, as is

the personal injury claimant. We will be calling them the European plaintiffs. The

remaining plaintiff is Jack King, the personal representative of the estate of his

daughter, Jessica King, an American citizen.

The district court ordered all of the complaints that had been filed before it,

except one (which was the only complaint that stated a contractual claim),

consolidated into a master complaint for administrative purposes. Cessna filed a

motion to dismiss in favor of the Italian courts on grounds of forum non

conveniens. The district court eventually granted that motion as to all of the

European plaintiffs. While the district court denied the motion as to the King

3
plaintiff, it did grant a stay of proceedings in that case pending resolution by the

Italian courts of Italian law issues relating to Cessna’s liability and any damages

the company might owe the plaintiffs. The district court then de-consolidated the

cases. We re-consolidated them for purposes of appeal.

This appeal by all seventy-one plaintiffs does not involve any liability or

damages issues. Instead, it presents a threshold question of appellate jurisdiction

and a question of subject matter jurisdiction. The non-jurisdictional issue

presented is whether the district court abused its discretion in dismissing the

European plaintiffs’ actions on forum non conveniens grounds and staying further

proceedings in the King case.

I.

Cessna filed its motions to dismiss all of the lawsuits on forum non

conveniens grounds in January and March of 2004. The district court initially

denied those motions. In an order issued in October 2004, the court concluded that

Jack King, a citizen of the United States, deserved the full deference to his choice

of forum normally afforded domestic plaintiffs. Although it concluded that the

foreign plaintiffs were not entitled to that same deference, the court reasoned that it

made little sense to dismiss the foreign plaintiffs’ suits while retaining King’s

lawsuit. Doing that would result in two sets of lawsuits involving the same

4
accident proceeding in different jurisdictions, ostensibly in the name of

convenience. The court noted that the plaintiffs’ theory of liability turned on acts

at Cessna’s corporate headquarters in the United States, and it found that, while the

dispute was governed by the substantive law of Italy, the Italian law issues were

“fairly simple.” After balancing the relevant public and private interest factors, the

court concluded that Cessna had “failed to show that a material injustice would be

manifest” if the case proceeded to trial in the United States.

Cessna moved for reconsideration. The district court denied that motion as

well, but had some doubt about its subject matter jurisdiction based on the

domicile of Jessica King at the time of her death. The court invited Cessna to file a

motion to dismiss on that ground, which it did. After considering that motion to

dismiss and the plaintiffs’ opposition, the district court concluded that the presence

of the King plaintiff did not destroy the diversity of citizenship which was

necessary to the court’s subject matter jurisdiction over the lawsuit.

After the district court had denied Cessna’s motions to dismiss, and as the

litigation progressed, the court found that the cases had changed in two ways

relevant to this appeal. First, the court perceived that the plaintiffs’ claims had

evolved from a theory of liability that focused on acts and omissions by Cessna at

its corporate headquarters in the United States to a theory dependent on acts by

5
Cessna’s agents at the Linate airport in Milan. This shift in the factual locus of

liability, combined with changes in Cessna’s defense strategy, convinced the court

that the Italian law issues were going to be more complicated than it had thought.

The second way in which the circumstances had changed is that Cessna presented

the district court with evidence that some of the plaintiffs in the cases before it,

including Jack King, were litigating a civil action in Italy against Air Evex and

various Italian governmental entities.

Responding to these changed circumstances, the district court asked the

parties to re-brief Cessna’s motion for reconsideration of the forum non conveniens

issue. After considering those briefs and hearing argument on the matter, the court

issued an order in October of 2005 in which it re-weighed the public and private

forum non conveniens factors and concluded that a dismissal based on forum non

conveniens was warranted as to the actions of all of the foreign plaintiffs but not as

to Jack King’s lawsuit.

The district court’s order dismissing the foreign plaintiffs’ actions on forum

non conveniens grounds was based on the combined effect of several factors. The

nature of the claims and defense strategy had changed, complicating the Italian law

issues and making Italy an increasingly attractive forum for resolution of the

6
disputes. The fact that some of the plaintiffs were already litigating in Italy made

parallel litigation unavoidable.

Still, the court decided not to dismiss the King lawsuit on forum non

conveniens grounds. The difference between King and the European plaintiffs, the

court explained, is that, as a United States citizen plaintiff, King is entitled to a

presumption in favor of his chosen forum. Moreover, it noted, much of the

evidence relating to King’s claims either already had been discovered in the United

States or was likely to be found here.

Even though the district court thought King was entitled to litigate his

lawsuit here, the court was not ready to proceed with it. Instead, the court decided

to stay the King case pending resolution of the related litigation in the Italian

courts, which hopefully would provide answers to some of the Italian law issues.

By staying the case, the district court reasoned that it could reduce the cost of

duplicative litigation, increase the likelihood that it would resolve the Italian law

issues correctly, and provide King with the forum to which he was entitled.

This is the appeal of the district court’s order by the European plaintiffs

dismissing their actions on forum non conveniens grounds, and King’s appeal of

the order staying proceedings in his case pending the outcome of the Italian

litigation.

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 II.

We begin our analysis with a review of our jurisdiction to hear this appeal

because, if the requirements for appellate jurisdiction are not met “we cannot

review whether a judgment is defective, not even where the asserted defect is that

the district court lacked jurisdiction.” United States v. Machado, 465 F.3d 1301,

1306 (11th Cir. 2006). On February 8, 2006, we issued the following jurisdictional

question:

Whether the district court’s November 1, 2005, order dismissing the
case as to the 69 foreign plaintiffs and staying the case as to plaintiff
Jack King and the December 14, 2005, order denying reconsideration
are final and appealable? See 28 U.S.C. § 1291; Gillespie v. United
States Steel Corp., 379 U.S. 148, 152, 85 S. Ct. 308, 311, 13 L.Ed.2d
199 (1964); FOGADE v. ENB Revocable Trust, 263 F.3d 1274, 1285
(11th Cir. 2001); Sigalas v. Lido Mar., Inc., 776 F.2d 1512, 1516
(11th Cir. 1985); Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365,
1368–69 (11th Cir. 1983); Broussard v. Lippman, 643 F.2d 1131,
1133 (5th Cir. Unit A Apr. 1981).

Cessna responded with a motion to dismiss the appeal, [Appellee’s Mot. to Dismiss

Appeal] contending that the district court’s order was not a final judgment as to all

parties, because the court had stayed rather than dismissed King’s claims.

The general rule is that a stay is not a final disposition, and thus not

immediately appealable. See Moses H. Cone Mem’l Hosp. v. Mercury Constr.

Corp., 460 U.S. 1, 10 n.11, 103 S. Ct. 927, 934 n.11 (1983). However, there is an

exception for stays that put a plaintiff “effectively out of court,” and in applying

8
that exception we have held that a stay order that is immoderate and involves a

protracted and indefinite period of delay is final and appealable under 28 U.S.C. §

1291. Id; see also Am. Mfrs. Mut. Ins. Co. v. Edward D. Stone, Jr. & Assoc., 743

F.2d 1519, 1523–24 (11th Cir. 1984); CTI-Container Leasing Corp. v. Uiterwyk

Corp., 685 F.2d 1284, 1287–88 (11th Cir. 1982).

Cessna attempts to escape the force of those precedents by equating the

principle they apply to the “death knell” doctrine, see generally Kmart Corp. v.

Aronds, 123 F.3d 297, 300 (5th Cir. 1997). It argues that we need not follow those

precedents because the Supreme Court’s decision in Quackenbush v. Allstate

Insurance Co., 517 U.S. 706, 116 S. Ct. 1712 (1996), sounded the death knell of

the death knell doctrine.

The Supreme Court first recognized the doctrine at issue in this case, the

“effectively out of court” version of finality, in Idlewild Bon Voyage Liquor Corp.

v. Epstein, 370 U.S. 713, 715 n.2, 82 S. Ct. 1294, 1296 n.2 (1962). In that case a

liquor distributor filed a complaint in federal court seeking a declaratory judgment

that the New York Alcoholic Beverage Control Law would be unconstitutional as

it was applied. Id. at 714, 82 S. Ct. at 1295. The distributor asserted a statutory

right to have its case heard by a three judge panel. Id. The district court refused to

convene a three judge court and stayed the lawsuit based on the Pullman abstention

9
doctrine, under which federal courts abstain from resolving constitutional disputes

where a state court’s clarification of its own law might render a constitutional

ruling unnecessary. Id. at 714, 82 S. Ct. at 1295–96; see R.R. Comm’n v. Pullman

Co., 312 U.S. 496, 501–02, 61 S. Ct. 643, 645–46 (1941). The Second Circuit

found that it had jurisdiction over the appeal and held that the district court had

erred in refusing to convene a three judge panel, but nonetheless dismissed the

appeal for reasons not relevant to our discussion. Idlewild, 370 U.S. at 714, 715

n.2, 82 S. Ct. at 1296 & n.2. On review the Supreme Court noted: “The Court of

Appeals properly rejected the argument that the order of the District Court ‘was not

final and hence unappealable under 28 U.S.C. §§ 1291, 1292,’ pointing out that

‘appellant was effectively out of court.’” Id. at 715 n.2, 82 S. Ct. at 1296 n.2. The

Court offered no further explanation. Id.

Two decades later in Moses H. Cone, the Supreme Court applied Idlewild’s

“effectively out of court” doctrine. Moses H. Cone, 460 U.S. at 9–10, 103 S. Ct. at

933–34. There a federal district court had stayed an action under the Colorado

River abstention doctrine, which permits a federal court to abstain from exercising

concurrent jurisdiction with a state court under certain exceptional circumstances.

Id. at 4, 103 S. Ct. at 931; see Colo. River Water Conservation Dist. v. United

States, 424 U.S. 800, 817–21, 96 S. Ct. 1236, 1246–48 (1976). The Fourth Circuit

10
reversed the stay, and the Supreme Court affirmed. Moses H. Cone, 460 U.S. at 4,

103 S. Ct. at 931. In doing so, the Court explained that since it had found that it

had jurisdiction over the Idlewild appeal, it must also have jurisdiction over the

Moses H. Cone appeal, because “the argument for finality of the District Court’s

order is even clearer” under Colorado River abstention than under Pullman

abstention. Id. at 10, 103 S. Ct. at 933. That is so because “[a] district court stay

pursuant to Pullman abstention is entered with the expectation that the federal

litigation will resume in the event that the plaintiff does not obtain relief in state

court on state-law grounds.” Id. at 10, 103 S. Ct. at 934. By contrast, a stay under

Colorado River usually contemplates there will be no further litigation in the

federal forum. Id.

The Supreme Court in Moses H. Cone did clarify that Idlewild had not

created a broad exception to “the usual rule that a stay is not ordinarily a final

decision for purposes of § 1291, since most stays do not put the plaintiff

‘effectively out of court.’” Id. at 10 n.11, 103 S. Ct. at 934 n.11. What it was

doing in Moses H. Cone, the Court explained, was no more than extending the

Idlewild decision to cases involving Colorado River abstention “or a closely

similar doctrine.” Id.

11
 The Court also made clear in Moses H. Cone that the “effectively out of

court” doctrine was not the same thing as the “death knell” doctrine, which by then

had been scrapped. Id. The difference, the Court explained, is that in a “death

knell” case “the order sought to be appealed ha[s] no legal effect on the named

plaintiff’s ability to proceed with his individual claim in federal court,” although

the plaintiff may elect not to continue. Id. For example, when a court refuses to

certify a class, the named plaintiff has a legal right to proceed, even though the

economic incentive to do so has been diminished. Id. By contrast, in a case where

the district court’s order puts the plaintiff “effectively out of court” continued

federal court litigation is not an option. “There is an obvious difference between a

case in which the plaintiff himself may choose not to proceed, and a case in which

the district court refuses to allow the plaintiff to litigate his claim in federal court.”

Id.

Finally came the Quackenbush case, in which the Supreme Court examined

the appealability of an abstention-based remand order entered under the Burford

abstention doctrine, under which federal courts may dismiss certain cases in

deference to complex state administrative procedures. Quackenbush, 517 U.S. at

709, 116 S. Ct. at 1717; Burford v. Sun Oil Co., 319 U.S. 315, 333 n.29, 63 S. Ct.

1098, 1107 n.29 (1943). The Court concluded that the “order remanding on

12
grounds of Burford abstention is in all relevant respects indistinguishable from the

stay order we found to be appealable in Moses H. Cone.” 517 U.S. at 714, 116 S.

Ct. at 1719. The “relevant respects” the Court identified were that the order put the

litigants “effectively out of court” and that “it conclusively determine[d] an issue

that [was] separate from the merits, namely, the question whether the federal court

should decline to exercise its jurisdiction in the interest of comity and federalism.”

Id. at 714, 116 S. Ct. at 1719–20.

Our Circuit has had several opportunities to apply the “effectively out of

court” doctrine. See Stone, 743 F.2d at 1522–24; CTI-Container Leasing Corp.,

685 F.2d at 1287–88; Hines v. D’Artois, 531 F.2d 726, 730–32 (5th Cir. 1976). In

Hines, which was issued after the Supreme Court’s decision in Idlewild but before

its decisions in Moses H. Cone and Quackenbush, we held that we had jurisdiction

over an appeal from a district court order staying litigation in an employment

discrimination lawsuit until the plaintiffs filed a complaint with the Equal

Employment Opportunity Commission and pursued it to final EEOC action.

Hines, 531 F.2d at 728. In CTI-Container, also decided before Moses H. Cone, we

found that we had jurisdiction over an order staying a lawsuit pending a

determination by the Iran-United States Claims Tribunal of its jurisdiction to hear

the claims raised in that lawsuit. CTI-Container, 685 F.2d at 1286, 1288.

13
 In Stone we had our first opportunity to apply the Idlewild doctrine in light

of the Moses H. Cone decision. Stone, 743 F.2d at 1523. The district court in

Stone had entered a stay pending the resolution of a previously filed state action.

Id. at 1521. Both of the “parties acknowledge[d] that the state lawsuit will not

decide the issues presented in [the plaintiff’s] federal claim.” Id. at 1523. We held

that we have jurisdiction over litigants placed “effectively out of court” even where

a “state decision will not have res judicata effect on the merits of [the plaintiff’s]

federal claim.” Id.

We have yet to address the effect of the Quackenbush decision on the scope

of Moses H. Cone. Four years after Quackenbush, we did on facts similar to those

here vacate as “immoderate” a stay of a case pending the resolution of a related one

in another country. See Ortega Trujillo v. Conover & Co. Commc’ns, 221 F.3d

1262, 1264–65 (11th Cir. 2000). However, our Trujillo opinion did not recognize

any jurisdictional issue, much less explain why we had jurisdiction to decide the

appeal. See generally id. The implication of our Trujillo decision—that we have

jurisdiction in this situation—does not bind us, because the prior precedent rule

does not extend to implicit jurisdictional holdings. See Okongwu v. Reno, 229

F.3d 1327, 1330 (11th Cir. 2000). We are free to decide the issue here, just as

though there were no Trujillo decision, but we reach the same conclusion.

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 Applying the “effectively out of court” doctrine to the facts before us, it is

apparent that King is at least as “effectively out of court” as the plaintiff in

Idlewild was. The only notable difference between this case and Idlewild is that

the stay in this case was issued in favor of foreign litigation, while the stay in

Idlewild was issued in favor of state court litigation. The question, then, is

whether that distinction matters to application of the “effectively out of court”

exception to the finality rule of appellate jurisdiction.

Cessna, of course, contends that it does matter. It argues that “[f]or purposes

of appealability, the significance of abstention doctrines based on federalism is that

generally, when a federal court abstains in deference to a state court or [state]

regulatory agency, the abstention necessarily ends the federal court’s involvement

with the suit.” (quotation marks and alternations in original omitted). That is true,

Cessna says, because the resulting judgment in state court will often have res

judicata effect on any later federal litigation. This is a sophisticated argument, but

not one that can be squared with the Idlewild decision.

If the Idlewild doctrine were confined to cases in which abstention

necessarily will end federal court involvement in the lawsuit, or generally does so,

the Supreme Court was mistaken about the disposition of that very case, and for

our purposes the Supreme Court never makes a mistake. In Idlewild the district

15
court had stayed the federal litigation based on Pullman abstention. See Moses H.

Cone, 460 U.S. at 9, 103 S. Ct. at 933. As the Supreme Court later reminded us in

Moses H. Cone, the Pullman doctrine is not one of the state court abstention

doctrines that is likely to result in a res judicata effect on subsequent federal

litigation. Id. at 10, 103 S. Ct. at 934. Instead, “[a] district court stay pursuant to

Pullman abstention is entered with the expectation that the federal litigation will

resume in the event that the plaintiff does not obtain relief in state court on state-

law grounds.” Id. If, as Cessna argues, the Idlewild doctrine did not apply to cases

in which “the expectation [is] that the federal litigation will resume” should the

plaintiff be unhappy with the state court results, the Supreme Court would have

reached the opposite jurisdictional holding in Idlewild itself.

Cessna’s characterization of the “effectively out of court” exception could

only be correct if Moses H. Cone or Quackenbush overturned Idlewild. Neither

did. Both indicate that Idlewild remains good law. See id. at 10 n.11 (“This

answers the dissent’s argument that Idlewild was overruled. . . .” (citations

omitted)); Quackenbush, 517 U.S. at 713, 116 S. Ct. at 1719 (referring to its

holding as “this reliance on Idlewild”). We can conclude that the Supreme Court

meant what Cessna says it did only if we assume that the Supreme Court

16
overlooked a significant fact in Idlewild, discovered that oversight in Moses H.

Cone, and then misstated what it had done on two later occasions.

Even if we wanted to make such a dubious assumption, we would be barred

from doing so for two reasons. The first is that we have held even after Moses H.

Cone that the Idlewild “effectively out of court” doctrine applies to stays in which

the other lawsuit will not decide the issues presented in the federal case. Stone,

743 F.2d at 1523. We must follow our Stone precedent until it is clearly overruled

by either this Court sitting en banc or by the Supreme Court. Main Drug, Inc. v.

Aetna U.S. Healthcare, Inc., 475 F.3d 1228, 1230 (11th Cir. 2007). Even if we

were to conclude that Cessna’s reading of Moses H. Cone and Quackenbush is a

viable one, “we are not at liberty to disregard binding [circuit] case law that is so

closely on point and has been only weakened, rather than directly overruled, by the

Supreme Court.” Fla. League of Prof’l Lobbyists, Inc. v. Meggs, 87 F.3d 457, 462

(11th Cir. 1996).

The second reason we cannot hold that Moses H. Cone or Quackenbush

implicitly overruled the Idlewild decision is that the Supreme Court has repeatedly

instructed us that: “If a precedent of this Court has direct application in a case, yet

appears to rest on reasons rejected in some other line of decisions, the Court of

Appeals should follow the case which directly controls, leaving to this Court the

17
prerogative of overruling its own decisions.” Rodriguez de Quijas v.

Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S. Ct. 1917, 1921–22 (1989);

accord, e.g., Hohn v. United States, 524 U.S. 236, 252–53, 118 S. Ct. 1969, 1978

(1998); Agostini v. Felton, 521 U.S. 203, 237, 117 S. Ct. 1997, 2017 (1997).

Where this leaves us is that the “effectively out of court” exception to the

final judgment rule is not categorically inapplicable where a stay has been entered

in favor of foreign court litigation. Its application in a particular case depends on

the formula enunciated in Quackenbush: Whether the litigant has been placed

“effectively out of court,” which will happen when a federal court stays its hand to

allow another court to assume partial jurisdiction over the merits of the suit.

Quackenbush, 517 U.S. at 714, 116 S. Ct. at 1719–20. In making that

determination we must be careful not to breathe new life into the moribund “death

knell” doctrine by permitting an appeal where the “order sought to be appealed

ha[s] no legal effect on the named plaintiff’s ability to proceed with his individual

claim[s] in federal court.” Moses H. Cone, 460 U.S. at 10 n.11, 103 S. Ct. at 934

n.11.

Jack King’s appeal fits within the “effectively out of court” exception to the

final judgment rule. He has for all practical effects been put out of court

indefinitely while litigation whose nature, extent, and duration are unknown, is

18
pending in Italy. The district court has held its hand while Italian courts assume or

continue what amounts to jurisdiction over the merits of the lawsuit. Their

decision of Italian law issues will be followed by the district court. The stay order

does have the legal effect of preventing King from proceeding with his claims in

federal court for an indefinite period of time, potentially for years. Because he has

been effectively put out of court, we have jurisdiction to review the order that did

put him out.

We do not mean that there are no differences between federalism and

international comity for purposes of evaluating the merits of a stay order, as

distinguished from deciding whether appellate jurisdiction exists to review the stay

order. As Cessna has reminded us, we have previously observed that: “The

relationship between the federal courts and the states (grounded in federalism and

the Constitution) is different from the relationship between federal courts and

foreign nations (grounded in the historical notion of comity).” Posner v. Essex Ins.

Co., 178 F.3d 1209, 1223 (11th Cir. 1999). Those important differences do not,

however, affect the extent to which a plaintiff is placed “effectively out of court,”

which is the measure that defines our appellate jurisdiction over stay orders.

III.

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 We turn now to the issue of whether the district court had subject matter

jurisdiction over this lawsuit based on diversity of citizenship. The plaintiffs argue

that Cessna’s contention that jurisdiction is lacking is not properly before us

because Cessna did not file a cross-appeal from the district court’s conclusion that

it did have jurisdiction. It is not too unkind to label this argument frivolous,

because “every federal appellate court has a special obligation to satisfy itself not

only of its own jurisdiction, but also that of the lower courts in a cause under

review.” Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S. Ct.

1326, 1331 (1986) (quotation marks omitted); accord Defiance Water Co. v. City

of Defiance, 191 U.S. 184, 194, 24 S. Ct. 63, 67 (1903) (“The fundamental

question of jurisdiction, first, of this court, and then of the court from which the

record comes, presents itself on every writ of error or appeal, and must be

answered by the court, whether propounded by counsel or not.”); Anderson v.

Watt, 138 U.S. 694, 701, 11 S. Ct. 449, 450–51 (1891); see also Fed. R. Civ. P.

12(h)(3) (“Whenever it appears by suggestion of the parties or otherwise that the

court lacks jurisdiction of the subject matter, the court shall dismiss the action.”).

Cessna contends here, as it did in the district court, that the presence of the

estate of Jessica King destroys diversity. Where an estate is a party, the citizenship

that counts for diversity purposes is that of the decedent, and she is deemed to be a

20
citizen of the state in which she was domiciled at the time of her death. 28 U.S.C.

§ 1332(c)(2); Palmer v. Hosp. Auth. of Randolph County, 22 F.3d 1559, 1562 n.1

(11th Cir. 1994).

Cessna argues that although she was born in California, Jessica King had

severed her ties to her home state and at the time of her death was domiciled

abroad, specifically in Denmark. If Cessna is correct that King was domiciled

abroad, there is no diversity of citizenship. A United States citizen with no

domicile in any state of this country is “stateless” and cannot satisfy the complete

diversity requirement when she, or her estate, files an action against a United

States citizen. (Cessna is a Kansas corporation, making it a citizen of at least one

state.) See Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 828, 109 S. Ct.

2218, 2221 (1989).

Cessna points to substantial evidence that Jessica King maintained only

minimal ties to California after last residing there in 1990, eleven years before her

death. It also argues that the district court erroneously placed the burden of proof

on Cessna to show a change in King’s domicile.

King argues that his daughter’s California domicile, which she acquired at

birth, was unaffected by her subsequent travels, because she never formed the

requisite intent to change that domicile during her foreign residency. Instead, she

21
resided abroad only as part of her mobile career in hotel management. Both parties

submitted evidence to the district court concerning whether Jessica King had

changed her domicile from California, and the court found that she had not.

The crux of Cessna’s attack on the district court’s finding is its assertion that

the court erred by failing to apply a presumption that Jessica King was domiciled

in the country in which she resided at the time of her death. Where, as here, the

plaintiff asserts diversity jurisdiction, he has the burden to prove that there is

diversity. Slaughter v. Toye Bros. Yellow Cab Co., 359 F.2d 954, 956 (5th Cir.

1966) (“The burden to show the jurisdictional fact of diversity of citizenship [is] on

the . . . plaintiff.”).1 However, once a plaintiff shows a former domicile, “the

presumption is that it continues to exist,” and the burden shifts to the defendant to

present evidence that the domicile changed. Id. at 955 (quoting Stine v. Moore,

213 F.2d 446, 447 (5th Cir. 1954)).

One way for the defendant to satisfy the burden of producing evidence that

the domicile changed is by showing that the plaintiff resided elsewhere at the

crucial time, which in this case is the time of death. Id. at 956 (“The presumption,

upon which the [plaintiff] relies, of the continuance of the domicile of origin is met

1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions handed down prior to
the close of business on September 30, 1981.

22
by the counter-presumption of domicile in the jurisdiction where the party is a

resident at the crucial time . . . .”). If the defendant meets this burden, the plaintiff

must come forward with evidence showing that the relocation was “for some

particular purpose, expected to be only of a temporary nature, or in the exercise of

some particular profession, office, or calling.” Ennis v. Smith, 55 U.S. (14 How.)

400, 423 (1853). If the plaintiff fails to show that, the place of residence at the

crucial time in the litigation becomes the domicile. Id.

According to Cessna, in waltzing through these presumptions the district

court tripped over its feet by requiring that Cessna prove King had changed her

domicile of birth even after it had proven that King resided abroad at the time of

her death. Casting the issue as a legal one would help Cessna escape the highly

deferential clearly erroneous standard that is applicable to fact findings relating to

diversity, see Sweet Pea Marine, Ltd. v. APJ Marine, Inc., 411 F.3d 1242, 1248

(11th Cir. 2005), because we review de novo whether the district court applied the

correct legal standard. Rolling Greens MHP, L.P. v. Comcast SCH Holdings

L.L.C., 374 F.3d 1020, 1021 (11th Cir. 2004).

The district court, however, did not trip up on the law. Instead, the court

recognized, in its words, that there is a “presumption which flows from residency

at the time of death.” It rejected Cessna’s position not because the company had

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failed to meet its burden of production, but because the King plaintiff had

presented convincing evidence that King’s stay abroad was, again in the court’s

words, “temporary or transitory in nature due to her work and career goals.”

The notion that a citizen of a state does not lose her domicile when her

employer sends her abroad is as old as the presumption that a plaintiff’s foreign

residence is her domicile. In recognizing the presumption on which Cessna relies,

the Supreme Court in 1853 carved out an exception for business travel. Ennis, 55

U.S. (14 How.) at 423. The Court wrote:

But when there is a removal, unless it can be shown or inferred
from circumstances that it was for some particular purpose,
expected to be only of a temporary nature, or in the exercise of
some particular profession, office, or calling, [residence
elsewhere] does change the domicil.

Id. The district court, in applying the relevant precedent, did not ignore the

presumptive effect of Jessica King’s residence abroad at the time of her death;

instead, the court found from the evidence that she was there, in Ennis terms, “in

the exercise of some particular profession,” that profession being hotel

management.

Because the district court committed no legal error in analyzing the facts

related to the diversity issue, we are left with the question whether its finding that

King traveled pursuant to her career is clearly erroneous. It is not. Cessna did

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present substantial evidence that Jessica King’s ties to California had grown

increasingly attenuated, but the estate countered with evidence that she had spent

her years abroad slowly building experience with the Marriott corporation. As the

district court carefully laid out in its findings, Jessica King’s residence in each

foreign country where she had lived was in pursuit of her career goals. She

continued to visit California regularly while she was residing abroad, and her

parents testified that she intended to return there. Although King may have left the

“when” of her return open, she had decided the “whether” of it, and in this context

whether is what matters. District of Columbia v. Murphy, 314 U.S. 441, 455 n.9,

62 S. Ct. 303, 309 n.9 (1941).

As so often is the case, the evidence gave rise to conflicting inferences, but

that is why we have factfinders. Acting in its role as factfinder, the district court

resolved the conflicts in favor of the plaintiff and found, as it properly could, that

Jessica King retained her original domicile in California. In light of that finding,

there is diversity of citizenship subject matter jurisdiction.

IV.

Having concluded that both we and the district court have jurisdiction over

this case, we turn to the question of whether the district court abused its discretion

in staying further proceedings in the King case. We have repeatedly held that a

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stay order which is “immoderate” and involves a “protracted and indefinite period”

of delay is impermissible. Stone, 743 F.2d at 1523–24; see also Trujillo, 221 F.3d

at 1264–65; CTI-Container, 685 F.2d at 1288–90; Hines, 531 F.2d at 733–35.

Trujillo is particularly instructive. In that case we vacated as immoderate a

stay pending litigation in the Bahamas because it “seem[ed] indefinite” and it

appeared that the stay would expire only after the conclusion of litigation in that

foreign forum. Trujillo, 221 F.3d at 1264. This stay, likewise, seems indefinite

and apparently will expire only after the conclusion of litigation in Italy. The only

way in which this stay materially differs from the one entered in Trujillo is that

there the district court expressly found that the litigation already pending in the

Bahamas would “directly relate” to those issues raised before the federal court. Id.

That distinction, however, only helps King’s argument. Here, we have minimal

evidence to assess the scope of litigation in Italy and no assurance at all that the

Italian proceedings will directly relate to the issues in this lawsuit. Although the

district court has asked the parties to submit status reports on the Italian litigation,

Trujillo rejected the idea that regular reports can save an otherwise indefinite stay.

Id. at 1264 n.3.

Cessna argues that this stay bears a strong similarity to an order certifying

questions of state law, a practice this circuit regularly follows. A certified

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question, however, immediately triggers a state proceeding on the precise question

at issue in the federal litigation, and we are assured by past experience that our

state court colleagues will act with reasonable dispatch. By contrast, there is no

indication when, if ever, the Italian litigation will resolve the claims raised in this

case, and whether King will have a meaningful opportunity to participate in those

proceedings.

For all of these reasons, we will vacate the stay the district court entered in

the King lawsuit and remand that case for further proceedings consistent with this

opinion.

V.

The final issue before us is whether the district court abused its discretion in

dismissing the actions of the European plaintiffs on forum non conveniens

grounds. We will not address that issue on the merits in this appeal, because we

think the most prudent course is to vacate that order and remand for further

consideration in light of our decision vacating the order staying proceedings in the

King case. In balancing the forum non conveniens factors and concluding that it

should dismiss the foreign plaintiffs, the district court relied in part on its belief

that by staying the King case and nudging the foreign plaintiffs towards litigation

in a more appropriate forum it could avoid wasteful and duplicative litigation.

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 Because we are vacating the stay order and recognizing King’s right to

proceed in the district court, one of the considerations that led to the district court’s

ruling in the cases of the European plaintiffs has changed. If the district court had

known it could not avoid dual proceedings by staying the King case, it might have

dismissed all of the plaintiffs, including King, or allowed all of the plaintiffs to

proceed here, or perhaps pursued some other avenue. Rather than speculate as to

what, if anything, the court might have done differently had it known that it could

not stay proceedings in the King case, we will vacate and remand this entire case to

the district court so that it can decide. In doing so, we neither express nor imply

any view on the correctness of any options that the district court may choose on

remand. Our decision in this appeal is limited to holding that the court had subject

matter jurisdiction based on diversity of citizenship, that the stay of the King case

cannot stand, and that the district court ought to decide in the first instance how to

proceed from here.

We VACATE the order staying the King case and the order dismissing the

cases of the foreign plaintiffs, and we REMAND the cases to the district court for

further proceedings consistent with this opinion.

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