
USCA1 Opinion

	




        October 25, 1994        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1633                                LIL IZQUIERDO, ET AL.,                               Plaintiffs, Appellants,                                          v.                          DENTON CONSTRUCTION, CO., ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Carmen C. Cerezo, Chief U.S. District Judge]                                          _________________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                         Campbell, Senior Circuit Judge, and                                   ____________________                                Boudin, Circuit Judge.                                        _____________                                 ____________________            Gabriel I. Penagaricano on brief for appellants.            _______________________            Gloria  L.  Lebron  Nieves  and  Cobian   &  Valls  on  brief  for            __________________________       _________________        appellees.                                 ____________________                                 ____________________                 Per Curiam.   Plaintiffs-appellants appeal the dismissal                 __________            of their action for  lack of diversity jurisdiction,  as well            as the denial of  their motion for reconsideration.   For the            following reasons, we affirm.                                          I.                 This  is a personal injury action arising out of a motor            vehicle accident which occurred in Puerto Rico.   Plaintiffs-            appellants are  a married  couple,  Robert Campbell  and  Lil            Izquierdo,  and their  three children,  Robert, Jamilah,  and            Kirsa  Campbell  Izquierdo.    On  November  29,  1991,   Lil            Izquierdo and the three children were travelling together  in            an automobile when it collided with a motor vehicle driven by            Rosario Rosa Acevedo.  Lil Izquierdo was rendered unconscious            by the accident and remained in a coma until January 6, 1992.            On November  30, 1992,  appellants brought  a lawsuit  in the            United States District Court for the District of  Puerto Rico            against  Rosario Rosa  Acevedo, Denton  Construction Company,            Integrand Assurance  Company,  and the  Puerto  Rico  Highway            Authority.   The amended complaint,  which invokes  diversity            jurisdiction under  28 U.S.C.   1332(a)(1),  alleges that all            plaintiffs  are citizens of  New York and  all defendants are            citizens of Puerto Rico.                   On   January  28,  1994,  appellee  Denton  Construction            Company moved to dismiss the action, claiming that  diversity            jurisdiction  is  lacking  because  Lil  Izquierdo   and  the            children were domiciled  in Puerto  Rico at the  time of  the            accident.   Appellee supported  its  contentions with,  inter                                                                    _____            alia,  excerpts  from a  deposition  of  Lil Izquierdo  which            ____            revealed  that  she  had  been  living  in  Puerto  Rico  for            approximately eleven years.  She and her husband had moved to            Puerto  Rico from  New York  after the  birth of  their third            child, Kisra.   They voted and worked in Puerto  Rico.  After            some years, Robert Campbell moved back to New York because he            was able to  find a better job there.  Lil Izquierdo remained            in Quebradillas, Puerto Rico with the children and  worked as            a school teacher.                 In opposition, appellants pointed out  that the relevant            date for determining whether diversity jurisdiction exists is            the  time  of  filing  the  complaint.   See,  e.g.,  Valedon                                                     ___   ____   _______            Martinez v. Hospital Presbiteriano  de la Comunidad, 806 F.2d            ________    _______________________________________            1128, 1132  (1st Cir. 1986).   Appellants contended  that Lil            Izquierdo and the children had joined Robert Campbell in  New            York  in  January  1992,  and  that  the  entire  family  was            domiciled  there  at  the   time  the  complaint  was  filed.            Although since  filing the  complaint, Lil Izquierdo  and the            children had returned to  Quebradillas, and Lil Izquierdo had            returned  to  her  former   position  as  a  school  teacher,            appellants  alleged  that  the  return  was  solely  for  the            purposes of  furthering  Lil Izquierdo's  rehabilitation  and            attending  to  the  lawsuit.     Appellants  supported  their            allegations with  a sworn statement, dated  February 7, 1994,            attesting  that Lil  Izquierdo and  her children  had changed            their  "residence" to New York in January 1992 and planned to            return  there  after   Lil  Izquierdo's  rehabilitation   was                                         -3-            completed.    Appellants  also  submitted excerpts  from  the            deposition of Lil Izquierdo in which she testified that after            becoming conscious and beginning her rehabilitation, she  had            been  unable  to find  a  job in  the  United States  and had            returned to Puerto Rico because she needed the "resource" and            her  former supervisor was willing to  let her work part-time            on a trial basis.  Although she and the children were  living            in  their former home,  Lil Izquierdo  testified that  she no            longer owned it and that it was now "under the bank's name."                 On  April  5,  1994,   the  district  court  found  that            diversity is lacking, at least as to Lil Izquierdo, based, in            part, on her deposition testimony which suggested that "after            the accident  she was packed up and taken off to the States."            The court observed that at no point in the excerpts submitted            did Lil Izquierdo  express any  desire to make  New York  her            domicile, even after she  arrived.  The court also  noted the            absence of  "any evidence traditionally  evaluated that could            support  a change in domicile for any of the three plaintiffs            domiciled  in Puerto  Rico."   Judgment  dismissing the  case            without prejudice was entered on April 8, 1994.                     On  April  20,  1994,  appellants  filed  a  motion  for            reconsideration supported by a second  sworn statement, dated            May 2, 1994,  in which Lil Izquierdo  described her residence            in New  York as "true, fixed and permanent" and her return to            Puerto Rico as  "temporary."  The  district court denied  the                                         -4-            motion stating that the language and content of the statement            "are  too stilted and constructed  to be more  than a belated            attempt to recreate a version of intent after the fact."  The            court also stated:                 If  it is  plaintiffs next  strategy  to physically                 relocate  once  again to  New  York,  in a  belated                 effort  to  once  again  prove  her  intent  to  be                 domiciled there, we remind them that the moment for                 consideration  was  the  first time  that  she  was                 living   there.     All  other   considerations  of                 domicile,  voter registration,  property ownership,                 driver's license,  organizational ties, employment,                 and  the like, as well as the ties cut upon leaving                 Puerto Rico were never demonstrated.            Appellants filed a timely notice of appeal from the dismissal            and from the denial of their motion for reconsideration.                                         II.                 Federal  jurisdiction  under   28  U.S.C.     1332(a)(1)            requires  that  the   "matter  in  controversy"   be  between            "citizens of  different states."  For  purposes of diversity,            state  citizenship  is   ordinarily  equated  with  domicile.            Rodriguez-Diaz v.  Sierra-Martinez, 853 F.2d 1027,  1029 (1st            ______________     _______________            Cir. 1988).   "A person's domicile `is the place where he has            a true, fixed home and principal establishment, and to which,            whenever he is  absent he has  the intention of  returning.'"            Id.  (quoting C. Wright, A.  Miller & E.  Cooper, 13B Federal            ___                                                   _______            Practice & Procedure    3612, at  526 (1984)).   In order  to            ____________________            change domicile, a person  must (1) physically relocate  to a            new state; and  (2) intend  to remain there.   See Bank  One,                                                           ___ __________            Texas, N.A. v. Montle, 964 F.2d  48, 50 (1st Cir. 1992).  The            ___________    ______                                         -5-            determination of domicile  is a  mixed question  of fact  and            law, and a  district court's  finding will not  be set  aside            unless clearly erroneous. Id. at 51.                                        ___                 Appellants  contend  that the  district  court erred  in            finding that Lil Izquierdo never  changed her domicile to New            York.  We  disagree.  We note as an  initial matter that once            challenged, appellants  bore the  burden of  supporting their            allegations  of  jurisdiction  with  competent  proof.    See                                                                      ___            O'Toole v. Arlington  Trust Co.,  681 F.2d 94,  98 (1st  Cir.            _______    ____________________            1982).    Since  it  is  undisputed that  Lil  Izquierdo  was            residing in New  York at  the time the  complaint was  filed,            appellants needed only  to prove that she  intended to remain            there.  Appellants, however, presented no evidence whatsoever            bearing on the factors  traditionally relevant to determining            such intent.1   For example,  there is no  evidence that  Lil            Izquierdo,  who  voted in  Puerto  Rico,  changed her  voting            registration to New York.  See Lundquist  v. Precision Valley                                       ___ _________     ________________            Aviation, Inc., 946 F.2d  8, 12 (1st Cir. 1991)  (noting that            ______________                                            ____________________            1.  These factors include:                 the  place where  civil  and  political rights  are                 exercised, taxes  paid, real and  personal property                 (such  as  furniture   and  automobiles)   located,                 driver's and other licenses obtained, bank accounts                 maintained, location of  club and church membership                 and places of business or employment.            Lundquist v. Precision Valley Aviation, Inc., 946 F.2d 8, 11-            _________    _______________________________            12 (1st  Cir. 1991)  (quoting 1 Moore's  Federal Practice,                                               _________________________            0.74[3.-3], at 788 (2d ed. 1991)).                                         -6-            the  place  a person  is registered  to  vote is  a "weighty"            factor  in determining  domicile).   Nor  is there  any other            objective  evidence   in  the  record   that  Lil   Izquierdo            established political, civic, or  community ties to New York.            Moreover, although appellants point out that Lil Izquierdo no            longer  owned  her  home  in  Quebradillas  by  the time  she            returned to Puerto Rico,  the deposition excerpts reveal that            she  was in  contact  with  the  bank  and  hoped  to  regain            ownership  by  making  the   necessary  payment.    Far  from            demonstrating that Lil Izquierdo had severed ties with Puerto            Rico, such evidence suggests that she continued to view it as            her home.                   We add that the sworn statement dated February 7,  1994,            attesting  to  Lil Izquierdo's  change  of  domicile and  her            intent to return to  New York after further "rehabilitation,"            was  conclusory  and  also  conflicted  with Lil  Izquierdo's            deposition testimony that she  lived "on a day by  day basis"            and that "hopefully, something  positive will happen and I'll            be  able to pay for the house  [in Quebradillas]."  Cf. Hawes                                                                ___ _____            v. Club Ecuestre El  Comandante, 598 F.2d 698, 704  (1st Cir.               ____________________________            1979) (giving no weight to conclusory statements in affidavit            as to intention).   Given  the paucity of  evidence that  Lil            Izquierdo changed  her domicile to New  York, and conflicting            evidence to  the contrary, we  cannot say  that the  district            court committed clear error  in making the determination that                                         -7-            it  did.  See Lundquist,  946 F.2d at  13 (upholding district                      ___ _________            court's ruling on diversity where evidence  was conflicting);            O'Toole,  681 F.2d  at  98 (holding  that  "[t]he paucity  of            _______            appellants' presentation of evidence justifie[d] the district            court's conclusion that they had not met [their] burden.").2                 We also  reject appellants'  argument that  the district            court  erred in not giving them an evidentiary hearing on the            jurisdictional  issue.   "A  district  court  has very  broad            discretion  in  determining  the  manner  in  which  it  will            consider the  issue of jurisdiction."   Valedon Martinez, 806                                                    ________________            F.2d  at 1132.  Here, appellants were given ample opportunity            to  present the court with facts relevant to the existence of            jurisdiction.    Moreover,  appellants  did  not  request  an            evidentiary  hearing  until  after the  case  was  dismissed.            Under the circumstances, the district court did not abuse its            discretion in  deciding  the issue  on documentary  evidence.            See O'Toole, 681  F.2d at  98 ("Any  failure on  the part  of            ___ _______            appellant  to fully  avail themselves  of the  opportunity to            present evidence to the  court should not now be  blamed upon            the court's choice not to require an evidentiary hearing.").                 Lastly, we consider the  denial of appellants' motion to            reconsider.   In  this motion, which  failed to  identify the                                            ____________________            2.  In light  of our decision upholding  the district court's            determination  that diversity is lacking "at  least as to Lil            Izquierdo," we  need not  consider whether diversity  is also            lacking with respect to the three children.                                           -8-            applicable   procedural  rule,  appellants  argued  that  the            district court overlooked the first sworn statement attesting            to Lil Izquierdo's intent  to make New York her  domicile and            reached  an erroneous legal conclusion.  Appellants supported            the  motion to  reconsider  with the  second sworn  statement            which  made  additional  conclusory   statements  as  to  Lil            Izquierdo's  intention.  It is plain from the record that the            district court carefully considered these sworn statements in            denying the  motion for  reconsideration.  Moreover,  for the            reasons we have already articulated, we  cannot find that the            district court erred in reaching the legal conclusion it did.            Under the  circumstances, whether  we construe the  motion to            reconsider as one under Federal Rule Civil Procedure 59(e) or            60(b), we  find no abuse  of discretion  in its denial.   See                                                                      ___            Kaercher v. Trustees of Health & Hosps, Inc., 834 F.2d 31, 34            ________    ________________________________            (1st  Cir. 1987) (denial of Rule 59(e) and Rule 60(b) motions            subject to abuse of discretion standard on appeal).3                                            ____________________            3.  Contrary to  the position taken by appellants, we are not            persuaded that  the district court's statement,  in its order            denying the motion for  reconsideration, that "the moment for            consideration  was the  first time  that [Lil  Izquierdo] was            living [in New  York]," constitutes a ruling in  advance that            appellants are  barred from refiling their  action in federal            district court.   We think that the  district court's remarks            are  better  construed  as   a  reminder  that  diversity  is            determined as of the  date an action is commenced  and cannot            be created by a change of domicile during the pendency of the            action.  In any event,  we note that a dismissal for  want of            jurisdiction does  not preclude  a second action  where there            are  subsequent  developments  that cure  the  jurisdictional            deficiency  in the first suit.  See, e.g., Costello v. United                                            ___  ____  ________    ______            States, 365  U.S. 265, 284-88 (1961)  (holding that dismissal            ______                                         -9-                 Affirmed.  See 1st Cir. R. 27.1.                 ________   ___                                            ____________________            of  denaturalization proceedings  for defective  affidavit of            good  cause  was for  lack of  jurisdiction  and did  not bar            subsequent  proceeding  on  proper affidavit);  GAF  Corp. v.                                                            __________            United States, 818 F.2d 901, 913-14 (D.C. Cir. 1987) (stating            _____________            that   jurisdictional   deficiencies  may   be   remedied  by            occurrences subsequent to original dismissal); Dozier v. Ford                                                           ______    ____            Motor  Co., 702 F.2d 1189,  1196 (D.C. Cir.  1983) (Wald, J.,            __________            dissenting) (observing  that lack of complete  diversity is a            curable defect);  1B James W.  Moore et al.,  Moore's Federal                                                          _______________            Practice   0.405[5]  (2d ed. 1993) (stating  that a dismissal            ________            for  want  of jurisdiction  does  not  preclude a  subsequent            action where  in the interim  facts have  occurred which  now            establish  jurisdiction).  We express no opinion on whether a            second action in federal court is precluded here.                                           -10-
