                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 09-2266


                               JAMES FRANK PIERRO,
                                              Appellant

                                            v.

              ANGELA KUGEL; GEORGE KUGEL, Husband and Wife


            APPEAL FROM THE UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF NEW JERSEY
                           (D.C. Civil No. 09-cv-01686)
                District Judge: Honorable Dickinson R. Debevoise


                      Submitted Under Third Circuit LAR 34.1(a)
                                    July 2, 2010


            Before: SLOVITER, BARRY and HARDIMAN, Circuit Judges

                              (Opinion Filed: July 6, 2010)


                                        OPINION




BARRY, Circuit Judge

      Finding that it lacked subject matter jurisdiction, the District Court dismissed

Appellant James Pierro’s complaint. We will vacate and remand.
                                            I.

       Pierro is a federal prisoner incarcerated in Virginia. He was sentenced to a term of

imprisonment of 120 months by the United States District Court for the District of New

Jersey. See United States v. Pierro, Cr. 04-714-01 (D.N.J. Mar. 16, 2005) (Judgment in a

Criminal Case). In April 2009, while incarcerated, Pierro filed a complaint in federal

court alleging that his sister and her husband, Angela and George Kugel, mismanaged his

late mother’s estate. The complaint alleged that Angela resided in New Jersey. The

complaint asserted state law claims and federal diversity jurisdiction. The District Court

dismissed the complaint for lack of subject matter jurisdiction, applying a per se rule that

incarceration does not change a prisoner’s domicile. Pierro timely appealed.

                                              II.

       We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over a

district court’s dismissal of a case for lack of subject matter jurisdiction. Frett-Smith v.

Vanterpool, 511 F.3d 396, 399 (3d Cir. 2008).

       Diversity jurisdiction requires, among other things, that every plaintiff be diverse

from each defendant. 28 U.S.C. § 1332(a)(1). “Whether diversity jurisdiction exists is

determined by examining the citizenship of the parties at the time the complaint was

filed.” Midlantic Nat’l Bank v. Hansen, 48 F.3d 693, 696 (3d Cir. 1995).

       It is well-settled that, for purposes of diversity jurisdiction, citizenship means

domicile, not residence. See Krasnov v. Dinan, 465 F.2d 1298, 1300 (3d Cir. 1972). To


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acquire a domicile, a person must be physically present in a state and intend to remain in

that state. Id. “In determining an individual’s domicile, a court considers several factors,

including declarations, exercise of political rights, payment of personal taxes, house of

residence, . . . place of business . . . location of brokerage and bank accounts, location of

spouse and family, membership in unions and other organizations, and driver’s license

and vehicle registration.” McCann v. George W. Newman Irrevocable Trust, 458 F.3d

281, 286 (3d Cir. 2006) (quotation omitted).

       This case presents the discrete question of whether, for purposes of diversity

jurisdiction, a prisoner’s citizenship may properly be based on his state of incarceration.

The modern position – and that adopted by the majority of courts of appeals to have

addressed this issue – is that the domicile of a prisoner before his imprisonment

presumptively remains his domicile during his imprisonment. That presumption,

however, may be rebutted by showing a bona fide intent to remain in the state of

incarceration on release. See Stifel v. Hopkins, 477 F.2d 1116, 1126 (6th Cir. 1973); see

also Smith v. Cummings, 445 F.3d 1254, 1260 (10th Cir. 2006); Singletary v. Cont’l Ill.

Nat’l Bank & Trust Co. of Chi., 9 F.3d 1236, 1238 (7th Cir. 1993); Housand v. Heiman,

594 F.2d 923, 925 n.5 (2d Cir. 1979) (per curiam); Jones v. Hadican, 552 F.2d 249, 251

(8th Cir. 1977). We agree.

       In adopting this position, the First Circuit stated, “[i]n order to overcome the

presumption, the prisoner must offer more than conclusory statements and unsupported


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allegations. No single factor is dispositive, and the analysis focuses not simply on the

number of contacts with the purported domicile, but also on their substantive nature.”

Hall v. Curan, 599 F.3d 70, 72 (1st Cir. 2010) (per curiam) (quotations omitted). Indeed,

a prisoner must introduce more than mere “unsubstantiated declarations” to rebut the

presumption. Stifel, 477 F.2d at 1126. And, as the Eighth Circuit noted, a prisoner must

“show truly exceptional circumstances” to overcome the presumption. Jones, 552 F.2d at

251. In short, the presumption will not be easily rebutted.

       Here, Pierro alleged only his and Angela’s residency, not citizenship, and failed to

allege facts demonstrating a bona fide intent to remain in Virginia. However, a court

should ordinarily allow a plaintiff to amend his complaint to properly allege the parties’

citizenship, unless amendment would be inequitable or futile. See 28 U.S.C. § 1653; In re

Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997). Because the

District Court sua sponte dismissed Pierro’s complaint for lack of jurisdiction, we vacate

and remand to permit Pierro to amend his complaint to allege his citizenship and that of

Angela and George and any facts demonstrating his intent to remain in Virginia.




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