                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 19-1300
                                       ___________

                                    JEAN COULTER,
                                                Appellant

                                             v.

              GERRI VOLCHKO PAULISICK; JOSEPH R. PAULISICK
                    ____________________________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                         (D.C. Civil Action No. 2-15-cv-00937)
                      District Judge: Honorable Joy Flowers Conti
                      ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   June 26, 2019
           Before: CHAGARES, BIBAS, and GREENBERG, Circuit Judges

                              (Opinion filed: June 28, 2019)
                                     ___________

                                        OPINION*
                                       ___________

PER CURIAM

       Jean Coulter appeals the District Court’s dismissal of her action for lack of subject


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
matter jurisdiction. We will affirm the District Court’s judgment for the following

reasons.

       On July 20, 2015, Coulter filed this suit against Appellees Gerri Volchko Paulisick

and Joseph R. Paulisick (“the Paulisicks”), alleging that a fallen tree branch from the

Paulisicks’ property caused damage to Coulter’s adjacent property located in Butler,

Pennsylvania. Coulter asserted that she was a New Jersey citizen and invoked

jurisdiction under 28 U.S.C. § 1332 (diversity of citizenship).1

       Seven days later, on July 27, 2015, Coulter filed a separate suit against her brother,

James Coulter, in the Western District of Pennsylvania (“Coulter v. Coulter”), alleging

various causes of action relating to the same piece of property in Butler, Pennsylvania.

As she did in the current case, Coulter asserted diversity of citizenship as the basis for the

court’s jurisdiction. District Judge Bissoon initially found Coulter to have established her

domicile in Pennsylvania,2 and issued an order to show cause, directing Coulter to

demonstrate that she had actually established a new domicile in New Jersey. After

reviewing Coulter’s response, Judge Bissoon ultimately concluded that Coulter had not



1
 In her amended complaint, Coulter identified Philadelphia, Pennsylvania, as her
principal mailing address since 2011. Am. Compl. at 1–2. Nevertheless, Coulter
maintained that she was a resident of New Jersey “since June 2014.” Am. Compl. ¶ 1.
2
 Judge Bissoon took judicial notice of Coulter’s residence in Pennsylvania as noted in
Coulter’s prior litigation, specifically citing Coulter v. Gale, 2:12-cv-01461, wherein
Coulter averred that she was a resident of Pennsylvania. See Coulter v. Coulter, 715 F.
App’x 158, 160 (3d Cir. 2017) (not precedential).
                                                2
met her burden to show that she had, in fact, established a new domicile in New Jersey,

and dismissed the case for lack of subject matter jurisdiction. Coulter appealed, and this

Court affirmed Judge Bissoon’s determination. See Coulter, 715 F. App’x at 160.

       Meanwhile, in the current case, the Paulisicks eventually filed a motion to dismiss

and strike this action. The District Court, in considering the Paulisicks’ motion and

several other motions filed by Coulter, first addressed whether it had subject matter

jurisdiction to hear the case. The District Court looked to Judge Bissoon’s finding that

Coulter was still a citizen of Pennsylvania on July 27, 2015, and noted this Court’s

affirmance of that determination. The District Court then concluded that the doctrine of

issue preclusion bound the court to that determination, and dismissed the case for lack of

subject matter jurisdiction. Coulter filed a motion seeking reconsideration, which

included several attachments that she purported proved her domicile was New Jersey.

The District Court found that Coulter provided no new evidence of her citizenship and

denied the motion. Coulter timely appealed.

       We have appellate jurisdiction over the District Court’s orders, dismissing the

action and denying reconsideration, pursuant to 28 U.S.C. § 1291. A district court’s

determination regarding domicile for purposes of subject matter jurisdiction is a mixed

question of fact and law. McCann v. Newman Irrevocable Tr., 458 F.3d 281, 286 (3d

Cir. 2006). Accordingly, we review the court’s factual determinations for clear error, and

the court’s application of legal principles and conclusions of law de novo. Washington v.

                                             3
Hovensa LLC, 652 F.3d 340, 341 (3d Cir. 2011). As to the clear error standard, “our sole

function is to review the record to determine whether the findings of the District Court

were clearly erroneous, i.e., whether we are left with a definite and firm conviction that a

mistake has been committed.” McCann, 458 F.3d at 286 (internal quotation marks

omitted).

       At issue is whether Coulter was domiciled in New Jersey at the time she filed her

action on July 20, 2015. On appeal, Coulter essentially challenges the District Court’s

determination on a legal basis and a factual basis. She argues that the District Court’s use

of the doctrine of issue preclusion3 as a basis for concluding she was a Pennsylvania

resident was legal error. She argues that the District Court’s reliance on Judge Bissoon’s

determination in Coulter v. Coulter was improper because that case was filed after the

instant case, and the determination of domicile for purposes of subject matter jurisdiction

must occur on the date the action was filed. See Washington, 652 F.3d at 344 (noting

that, in deciding whether diversity jurisdiction exists, a court must determine the parties’

citizenship based on relevant facts at the time the complaint was filed). Thus, because


3
  Issue preclusion ensures that “‘once an issue is actually and necessarily determined by a
court of competent jurisdiction, that determination is conclusive in subsequent suits based
on a different cause of action involving a party to the prior litigation.’” Burlington N.
R.R. Co. v. Hyundai Merch. Marine Co., 63 F.3d 1227, 1231 (3d Cir. 1995) (quoting
Montana v. United States, 440 U.S. 147, 153 (1979)). A court will apply issue preclusion
when: “(1) the issue sought to be precluded [is] the same as that involved in the prior
action; (2) that issue [was] actually litigated; (3) it [was] determined by a final and valid
judgment; and (4) the determination [was] essential to the prior judgment.” Id. at 1231–
32 (internal quotation marks omitted).
                                                4
her domicile could have conceivably changed in that time-span of a week, she maintains

that the District Court committed an error of law by using the doctrine of issue

preclusion. Coulter’s related factual challenge essentially argues that the facts

determining her domicile changed between the filing of her action against the Paulisicks

on July 20, and the following week when she filed her action against her brother on July

27.

       To the extent that Coulter avers that the District Court committed a legal error by

using the doctrine of issue preclusion as a basis for determining subject matter

jurisdiction, she is mistaken. See Park Lake Res. LLC v. U.S. Dep’t of Agric., 378 F.3d

1132, 1136 (10th Cir. 2004) (noting “dismissals for lack of jurisdiction preclude

relitigation of the issues determined in ruling on the jurisdiction question” (internal

quotation marks omitted)). Furthermore, Coulter misunderstands the District Court’s use

of issue preclusion in this case. As we noted on appeal in Coulter v. Coulter, Judge

Bissoon took judicial notice of Coulter’s residence in Pennsylvania based on Coulter’s

own representations in prior litigation beginning in 2012. See Coulter, 715 F. App’x at

160. This, as we further noted, gave rise to a rebuttable presumption of Coulter’s

domicile as being Pennsylvania. See id.; see also McCann, 458 F.3d at 286–87 (noting

“[a] domicile once acquired is presumed to continue until it is shown to have been

changed” and, consequently, this principle “gives rise to a presumption favoring an

established domicile over a new one” (internal quotation marks omitted)). Ultimately, we

                                              5
agreed that Coulter failed to meet her burden in proving her domicile had changed in the

intervening time period between her litigation in 2012 and the filing of her action on July

27, 2015. See Coulter, 715 F. App’x at 160–61.

       Here, the District Court reasoned that Coulter’s domicile was established as

Pennsylvania in 2012 and remained Pennsylvania through July 27, 2015—as Judge

Bissoon found in Coulter v. Coulter after full litigation of the issue. See Witkowski v.

Welch, 173 F.3d 192, 198–99 (3d Cir. 1999) (“Issue preclusion forecloses relitigation in

a later action [ ] of an issue of fact or law which was actually litigated and which was

necessary to the original judgment.” (emphasis added) (internal quotation marks

omitted)). Consequently, because Coulter’s action in the current case was filed on July

20, 2015, the District Court properly recognized the preclusive effect of Judge Bissoon’s

findings and dismissed for lack of subject matter jurisdiction. See Okoro v. Bohman, 164

F.3d 1059, 1063 (7th Cir. 1999) (noting “a jurisdictional dismissal precludes only the

relitigation of the ground of that dismissal, and thus has collateral estoppel (issue

preclusion) effect” on that ground of dismissal (internal citations omitted)). In short, the

issue of Coulter’s domicile was previously litigated and found to be Pennsylvania from

2012 to July 27, 2015, and, therefore, she is now precluded from relitigating that issue in

the current case.

       Even if we were to set aside the doctrine of issue preclusion, we cannot say that

the District Court’s factual determinations were clearly erroneous. In Coulter’s motion

                                              6
for reconsideration, she did not produce evidence sufficient to meet her burden of proof

and overcome the presumption of her Pennsylvania domicile. See McCann, 458 F.3d at

286 (listing factors relevant to determining domicile and noting the party asserting

diversity jurisdiction bears the burden of proof and can meet this burden by proving

diversity of citizenship by a preponderance of the evidence). Rather, she leveled

accusations of judicial misconduct, suggested that a different case in which she was

previously involved should be used for purposes of establishing domicile, and failed to

even provide an address for her alleged New Jersey domicile. The District Court

considered all of this and was unpersuaded.

       After review of the record, we cannot say that we are left with a definite and firm

conviction that a mistake has been committed by the District Court. See id. Accordingly,

for the foregoing reasons, we will affirm the District Court’s judgment. We also grant

the Paulisicks’ pending motion to supplement the appendix, and deny Coulter’s pending

motion to strike the Paulisicks’ brief and appendix.




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