                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          JUN 24 1998
                                 TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 AMEER LABEEB HASSAN,

          Plaintiff-Appellant,
 v.

 KIM ALLEN, Parole Supervisor,
 Adult Probation and Parole, Region II,
 Utah Department of Corrections;
 MIKE SORENSON, Parole Officer,
 Adult Probation and Parole, Region II,
 Utah Department of Corrections;
                                                        No. 97-4005
 JUNE HINCKLEY, Records Officer,
                                                   (D.C. No. 95-CV-51 B)
 Utah State Prison at Draper; JOHN
                                                         (D. Utah)
 DOE I, whose true name is not known,
 Utah Board of Pardons,

          Defendants,

 JOHN DOE II, whose true name is not
 known, Editor-in-Chief, Atlanta
 Journal & Constitution,

          Defendant-Appellee.




                             ORDER AND JUDGMENT *


      *
       After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9.
The case is therefore ordered submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. The court generally disfavors the citation of
                                                                       (continued...)
Before BALDOCK, EBEL, and MURPHY, Circuit Judges.


      In this defamation case against various Utah state officials and the editor of

an Atlanta newspaper, the pro se appellant has challenged the district court’s

decision to refuse service of process under 28 U.S.C. § 1915 and to dismiss the

complaint for lack of complete diversity. Because we find that the district court

erred in evaluating the diversity of citizenship of the parties, we reverse and

remand.



                                   Background

      Ameer Labeeb Hassan filed his handwritten, twelve-page “Complaint for

Personal Injury” on April 18, 1995, under the former version of 28 U.S.C. § 1915

(subsequently revised by the Prison Litigation Reform Act of 1996, Pub. L. 104-

134, 110 Stat. 1321), and was given permission to proceed in forma pauperis

(“IFP”). (See R., Doc. # 2, IFP Application & Order.) Hassan’s complaint

alleges that he “is a citizen of Utah who was paroled from the Utah State Prison

(USP) at Draper on 2-11-92” and that his parole supervision subsequently was



      *
       (...continued)
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.

                                        -2-
transferred to the state of Georgia, where Hassan “was a citizen of Georgia at all

times material hereto.” (See R., Doc. #1, Complt., at 2, ¶ 4.) Hassan’s complaint

also alleges that he voluntarily returned to Utah in 1994 to turn himself in to Utah

authorities, and he is now incarcerated in the Utah prison system. (See id. at 2, 4,

¶¶ 4, 18.)

      According to the factual allegations in Hassan’s complaint, in June 1993,

Hassan violated the terms of his parole, and at some later date, Utah officials

issued a warrant for Hassan’s arrest. (See id. at 3, 4, ¶¶ 14, 19.) During the week

of May 15, 1994, while Hassan was still at large in violation of his parole, the

Atlanta Journal & Constitution published a news item in its “Local” section under

a heading “Most Wanted.” (See id. at 3, ¶ 15 & Ex. I.) The news item was part

of a regular weekly feature published by the newspaper listing “fugitives who are

being sought by the FBI and thought to be in the metro area.” (See id. Ex. I.)

The first person listed in the article that week was Hassan, along with what

appears to be a law enforcement mug-shot of Hassan. (See id.). The article

described Hassan as being wanted “for alleged murder after fleeing prosecution

for parole violation. Hassan, who has previous convictions for homicide,

aggravated robbery, assault, kidnapping, sodomy and theft, is considered

extremely dangerous.” (See id.)




                                         -3-
      Hassan saw the newspaper item while he was still living in Atlanta, and he

subsequently decided to turn himself in to authorities in Salt Lake City, Utah,

which he did on May 27, 1994. (See id. at 3, 4, ¶¶ 15, 17-19.) At that time,

Hassan learned he was not wanted in connection with any murder charge, but

rather only for violating his parole. (See id. at 4, ¶ 19.) Furthermore, Hassan’s

complaint alleges that he has “never been previously convicted of aggravated

robbery, kidnapping, sodomy, or theft . . . or assault, but was convicted of assault

by prisoner.” (See id. at 4, ¶ 22.)

      On the basis of the alleged errors in the newspaper article, Hassan brought

suit for slander, libel, false light, and unwarranted governmental intrusion.

Hassan asserted diversity jurisdiction under 28 U.S.C. § 1332 against the

unknown defendant who was editor-in-chief of the Atlanta Journal &

Constitution, and federal-question jurisdiction under 28 U.S.C. § 1331 for

Hassan’s civil rights claims against the Utah defendants. (See id. at 2, ¶¶ 2-3.)

Hassan requested total damages of $1.6 million and an injunction ordering the

newspaper’s editor-in-chief to publish a retraction and to submit a letter of

apology to Hassan. (See id. at 9-11.)

      Following the approval of his IFP status, Hassan soon filed motions for

appointment of counsel and for official service of process under 28 U.S.C.

§ 1915. (See R., Doc. #4 & #9.) Hassan requested service on defendants Kim


                                         -4-
Allen, Mike Sorenson, June Hinckley, and Joe Doe II, editor-in-chief of the

Atlanta Journal & Constitution. 1 (See R., Doc. #9, at 1.) The district court

granted official service of process against the Utah state officials but not against

the editor-in-chief of the newspaper. (See R., Doc. #10.) When the Utah

defendants filed their answers to Hassan’s complaint, they requested a jury trial,

and on the basis of that request, the district court granted Hassan’s motion for

appointed counsel. (See R., Doc. #23.)

      Hassan’s appointed counsel then engaged in a series of discovery requests

with the Utah defendants that subsequently developed information that indicated

those defendants were not involved in the alleged defamation against Hassan.

(See R., Doc. #43, at 2.) As a result, Hassan and the Utah defendants jointly

moved to dismiss Allen, Sorenson, and Hinckley from the suit, and that motion

was granted on July 1, 1996. (See R., Doc. #44 & #46.) At the same time,

Hassan’s appointed counsel renewed Hassan’s request for official service of

process against the editor-in-chief of the Atlanta Journal & Constitution. (See R.,

Doc. #42 & #43.)

      The magistrate judge to whom Hassan’s case had been assigned, however,

determined that in light of the dismissal of the Utah defendants “this Court no


      1
        The record does not indicate that Hassan ever sought service against the
first John Doe defendant listed in his complaint, who allegedly was an employee
at the Utah State Board of Pardons.

                                         -5-
longer has jurisdiction pursuant to 28 U.S.C. § 1332(a) . . . [because] [t]here must

be complete diversity to sustain jurisdiction under § 1332.” (R., Doc. #45, Report

& Recommendation, at 2.) The magistrate judge recommended that the district

court dismiss Hassan’s suit. (See id. at 3.)

      In a handwritten “Notice of Objection to Report and Recommendation of

Magistrate,” 2 Hassan pointed out that the magistrate judge’s decision had quoted

his complaint out of context when the magistrate judge noted that Hassan

“asserted that he is a citizen of Georgia. . . .” (See id. at 1; R., Doc. #48, Notice

of Objection, at 1.) Hassan reiterated the allegation in his complaint that he is

currently incarcerated in Utah, that he is currently a citizen of Utah, and that he

was a citizen of Georgia only during “all times material” to the allegations in his

complaint. (See R., Doc. #48, at 1.)

      In an Order filed November 18, 1996, the district court recounted Hassan’s

allegations in his Complaint and then characterized Hassan’s Notice of Objection

as “arguing that, contrary to his complaint, he is actually now a citizen of Utah.”

(See R., Doc. #47, Order Adopting Report & Recommendation, at 1.) The district

court went on to say that it had “conducted a de novo review of the magistrate

judge’s R&R, Hassan’s objections, relevant pleadings on file, and applicable case


      2
        The record provides no explanation for why Hassan’s appointed counsel
failed to continue to represent Hassan. The district court’s docket entries show
no notice of withdrawal from his appointed counsel.

                                         -6-
law. The Court agrees with the magistrate judge’s decision in all material

respects.” (See id. at 1-2.) The court, therefore, adopted the magistrate’s report

and ordered Hassan’s complaint dismissed. (See id. at 2.) The district court,

however, did not file a “final judgment” or any other separate document

indicating a final judgment, as required by Fed. R. Civ. P. 58.

      Hassan prepared a handwritten Notice of Appeal that was dated December

20, 1996, but not actually filed in the district court until December 27, 1996. 3

(See R., Doc. #49.) The notice indicated that Hassan’s “appeal is taken from the

entire judgment.” (See id.)

      In light of the potential failure of Hassan to comply with the thirty-day

filing requirement for a notice of appeal under Fed. R. App. P. 4(a)(1), this court

noted a potential jurisdictional defect and directed Hassan to brief the issue.

Hassan’s handwritten brief argues that his notice of appeal was timely because

Saturdays, Sundays, and official holidays should not be counted in the

computation of time. (See Aplt. Br. at 3.) The Utah defendants, even though they

are no longer parties in this case, filed their own Memorandum Brief addressing

the jurisdictional issue. The defendants argue that our own cases, as well as cases



      Hassan’s brief on appeal does not include any information as to when
      3

Hassan submitted his Notice of Appeal to the prison mail system. Cf. Fed. R.
App. P. 4(c) (allowing the computation of time for an appeal by a pro se inmate to
be counted from the date of mailing if the inmate provides a sworn statement as to
when he mailed the notice of appeal).

                                         -7-
from the Ninth Circuit, suggest that this court should not dismiss Hassan’s appeal

because the district court’s failure to file a separate final judgment means that the

thirty-day clock in Rule 4(a)(1) has not yet begun to tick. (See Defs. Br. at 6.)



                                     Discussion

                         I. Timeliness of notice of appeal.

      Our ability to review the merits of the district court’s order depends in the

first instance on whether Hassan’s apparently untimely Notice of Appeal defeats

our appellate jurisdiction. Because we conclude that the district court’s failure to

enter a separate final judgment in this case prevented the thirty-day filing

deadline from beginning to run for Hassan’s Notice of Appeal, we hold that we

have proper appellate jurisdiction in this case.

      Under the Federal Appellate Rules, an appeal is commenced when a party

files a notice of appeal with the district court. See Fed. R. App. P. 3(a). The time

for filing this notice of appeal in a civil case in which the United States is not a

party is “30 days after the date of entry of the judgment or order appealed from.”

See Fed. R. App. P. 4(a)(1). Furthermore, “[a] judgment or order is entered

within the meaning of this Rule 4(a) when it is entered in compliance with Rules

58 and 79(a) of the Federal Rules of Civil Procedure.” See Fed. R. App. P.

4(a)(7).


                                         -8-
      Rule 58 provides that “[e]very judgment shall be set forth on a separate

document. A judgment is effective only when so set forth and when entered as

provided in Rule 79(a).” See Fed. R. Civ. P. 58. The purpose of this rule is to

eliminate confusion as to exactly when the clock for an appeal begins to run. See

Bankers Trust Co. v. Mallis, 435 U.S. 381, 384 (1978) (per curiam) (“The sole

purpose of the separate-document requirement, which was added to Rule 58 in

1963, was to clarify when the time for appeal under 28 U.S.C. § 2107 [and Fed.

R. App. P. 4(a)] begins to run.”) In the past, we have stressed the importance for

district courts to abide by this rule and to apply it mechanically by routinely

entering a separate final judgment when the court resolves all outstanding issues.

See United States v. City of Kansas City, 761 F.2d 605, 606-07 (10th Cir. 1985)

(“[T]he separate-document requirement must be ‘mechanically applied’ in

determining whether an appeal is timely.”); see also Amoco Oil Co. v. Jim Heilig

Oil & Gas, Inc., 479 U.S. 966, 969 (1986) (Blackmun, J., dissenting from the

denial of certiorari) (“[T]he separate-document requirement must be applied

mechanically in order to protect a party’s right of appeal.”).

      On the other hand, some of our cases have held that it is appropriate to

overlook the mechanical application of Rule 58’s “separate document”

requirement when a district court enters an order “containing neither a discussion

of the court’s reasoning nor any dispositive legal analysis.” See Clough v. Rush,


                                         -9-
959 F.2d 182, 185 (10th Cir. 1992); see also Kline v. Department of Health &

Human Servs., 927 F.2d 522, 523-24 (10th Cir. 1991). In these cases, we have

sought to preserve the interests of the parties to obtain appellate review of the

merits of their dispute and held that the appealed-from lower court orders were

“effective” as final judgments in spite of the absence of a separate document. See

Clough, 959 F.2d at 185; Kline, 927 F.2d at 524.

       In Hassan’s case, the district court’s abbreviated discussion suggests that

the reasoning in Clough and Kline might apply here. If we were to do so,

however, the result would be to overlook the failure of the district court to enter a

separate final judgment, and we would be forced to hold that Hassan missed the

deadline to file a notice of appeal. 4

       We reach a different result in this case, though, because we are persuaded

by the reasoning of a recent unpublished Order and Judgment that dealt with the

same kind of jurisdictional intersection between the thirty-day filing deadline of

Fed. R. App. P. 4(a)(1) and the separate-judgment requirement of Fed. R. Civ. P.



       4
        Hassan’s argument in his appeal brief that we should not count the
Saturdays, Sundays, and holidays between when the district court’s order was
entered on November 18, 1996, and when his Notice of Appeal was filed on
December 27, 1996, lacks merit. The Federal Rules specifically address the effect
of weekends and holidays on the computation of time limits. See Fed. R. App. P.
26(a). Rule 26(a) excludes weekends and holidays from a time computation only
when the time limit at issue is less than seven days. See id. Because the time
limit at issue here was thirty days, weekends and holidays are counted.

                                         - 10 -
58. See Crislip v. Shanks, No. 94-2221, 1996 WL 156757 (10th Cir. Apr. 4,

1996) (unpublished Order & Judgment). In Crislip, the court recognized that if it

followed the reasoning of Clough and Kline, the appellants “would be denied

their opportunity for review on the merits.” See id. at *1. As Crislip noted, the

Supreme Court has interpreted Rule 58 with a view toward ensuring appellate

jurisdiction rather than defeating jurisdiction through technical deficiencies. See

Bankers Trust, 435 U.S. at 387 (“‘It is too late in the day and entirely contrary to

the spirit of the Federal Rules of Civil Procedure for decisions on the merits to be

avoided on the basis of such mere technicalities.’”) (quoting Foman v. Davis, 371

U.S. 178, 181 (1962)). The Crislip court noted that the holding in Bankers Trust

requires an appellate court to “interpret Rule 58 in order to preserve the right to

appeal, not to jeopardize it.” See Crislip, 1996 WL 156757, at *2; see also

McCalden v. California Library Ass’n, 955 F.2d 1214, 1218-19 (9th Cir. 1992)

(holding that a notice of appeal filed more than eleven months after the appellant

had stipulated to the dismissal of his remaining claims was still timely because

the district court had failed to enter a separate final judgment); United States v.

Carter, 906 F.2d 1375, 1376 (9th Cir. 1990) (holding that a notice of appeal filed

more than three months after the district court entered a summary judgment order

on all of the appellant’s claims was still timely because the district court had

failed to enter a separate final judgment).


                                         - 11 -
      In light of Bankers Trust and Crislip, we conclude that “the absence of a

Rule 58 separate judgment in this case means that the time for filing a notice of

appeal has not yet begun to run.” Crislip, 1996 WL 156757, at *2. As a result,

Hassan’s appeal is not untimely, and we may exercise appellate jurisdiction under

Fed. R. App. P. 4(a). 5 We also conclude that despite the absence of a separate

judgment, the district court’s order is sufficiently final to establish appellate

jurisdiction under 28 U.S.C. § 1291. See Burlington N. R.R. Co. v. Huddletson,

94 F.3d 1413, 1416 n.3 (10th Cir. 1996) (“If no question exists as to the finality

of the district court’s decision, the absence of a Rule 58 judgment will not

prohibit appellate review.); see also Bankers Trust, 435 U.S. at 385 (“[N]othing

but delay would flow from requiring the court of appeals to dismiss the

appeal. . . . Wheels would spin for no practical purpose.”)




      5
        Our finding that Hassan’s Notice of Appeal is not untimely is buttressed
by two facts: First, Hassan’s Notice of Appeal was at most only seven days late,
and second, Hassan’s appointed counsel failed to file any withdrawal or other
notice of the termination of her representation of Hassan. Under these
circumstances, we believe that Hassan’s slight delay could have been excused
under Fed. R. App. P. 4(a)(5) (allowing a district court to extend the time for
filing a notice of appeal upon a showing of “excusable neglect or good cause”).

                                         - 12 -
                  II. Complete diversity of citizenship of parties.

      The district court ordered that Hassan’s complaint be dismissed because of

the magistrate judge’s finding that both Hassan and John Doe II were citizens of

Georgia and thus there was not complete diversity in the case, as required under

28 U.S.C. § 1332(a)(1). (See R., Doc. #47, at 1-2.) We review de novo a district

court’s dismissal for lack of subject matter jurisdiction. See Painter v. Shalala,

97 F.3d 1351, 1355 (10th Cir. 1996). When a court evaluates a claim of diversity

jurisdiction, it must look to the well-pleaded allegations on the face of the party’s

complaint. See Penteco Corp. Ltd. Partnership – 1985A v. Union Gas Sys., Inc.,

929 F.2d 1519, 1521 (10th Cir. 1991). If these allegations are insufficient to find

diversity jurisdiction, the court may also look to other facts developed in the

record. See id.

      Under the diversity jurisdiction statute, the federal courts have original

jurisdiction to decide a plaintiff’s state-law lawsuit if the dispute “is between . . .

citizens of different States.” See 28 U.S.C. § 1332(a)(1). A party’s “citizenship”

for purposes of federal jurisdiction is determined by looking to the person’s

domicile. See Crowley v. Glaze, 710 F.2d 676, 678 (10th Cir. 1983). Domicile,

in turn, is determined by finding the last place where a person resided with an

intention of remaining there indefinitely. See Mississippi Band of Choctaw

Indians v. Holyfield, 490 U.S. 30, 48 (1989) (“For adults, domicile is established


                                         - 13 -
by physical presence in a place in connection with a certain state of mind

concerning one’s intent to remain there.”); Crowley, 710 F.2d at 678 (“To effect a

change in domicile, two things are indispensable: First residence in a new

domicile, and second, the intention to remain there indefinitely.”).

      Furthermore, it is more than well-settled that a party’s citizenship, i.e., his

domicile, must be determined as of the moment the plaintiff’s complaint is filed,

and events either before or after the filing of the complaint will not defeat

citizenship. See Freeport-McMoRan, Inc. v. K N Energy, Inc., 498 U.S. 426, 428

(1991) (per curiam) (citing cases). As a result, courts and commentators have

recognized that a person may suffer an injury in one state, then move to another

state, thus acquiring citizenship/domicile there, and thereafter bring a federal

diversity suit that would not have been possible at the time of the injury. See 13B

Charles A. Wright et al., Federal Practice & Procedure § 3608, at 450-51 (2d ed.

1984) (collecting cases).




                                         - 14 -
      In Hassan’s case, that is exactly what his complaint alleges. 6 Hassan’s

well-pleaded factual averments contend that he was a citizen of Georgia at the

time the Atlanta Journal & Constitution published the news item about which he

complains. (See R., Doc. #1, at 2, ¶ 4.) He subsequently moved to Utah, where

he turned himself into law enforcement authorities, and he now resides in the

Utah prison system. (See id. at 4, ¶¶ 18-20.) These allegations plainly establish

that Hassan was a citizen of Utah for diversity purposes at the time he filed his

complaint. The district court’s conclusion that Hassan actually is a citizen of

Georgia is both factually and legally incorrect.



      6
        Some courts have recognized that the restrictions on the liberty of a
prisoner affect the determination of the prisoner’s domicile because domicile is a
voluntary status. See Sullivan v. Freeman, 944 F.2d 334, 337 (7th Cir. 1991). As
a result, courts have applied a presumption that when a prisoner has been moved
out-of-state by prison officers, the prisoner’s citizenship for diversity purposes is
the state where he was domiciled before he was imprisoned. See id.; see also
Ferrer v. Dailey, No. 96-3155, 1996 WL 731618, at *1 (10th Cir. Dec. 20, 1996)
(unpublished Order & Judgment) (“For purposes of diversity jurisdiction, when an
inmate has been forcibly incarcerated in another state, the state of citizenship
‘should be the state of which he was a citizen before he was sent to prison unless
he plans to live elsewhere when he gets out, in which event it should be that
state.’”) (quoting Singletary v. Continental Ill. Nat’l Bank & Trust Co., 9 F.3d
1236, 1238 (7th Cir. 1993)). This presumption, however, is rebuttable upon a
showing of sufficient facts to indicate that a prisoner has both residence and
present intent to remain indefinitely in a new state. See Sullivan, 944 F.2d at
337.
       This doctrine concerning the citizenship of prisoners does not alter the
substance of our conclusion below because Hassan’s state of domicile before he
was re-imprisoned in 1994 was Utah – he had voluntarily come to Utah with a
present intent to remain in the state indefinitely.

                                        - 15 -
      As a result, it appears that there was complete diversity of citizenship

between the remaining parties in this case at the time Hassan’s complaint was

filed. Thus, we REVERSE and REMAND to the district court.



      The mandate shall issue forthwith.

                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge




                                        - 16 -
