                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 15-3595
                                       ___________

                                GARY E. VAUGHN, JR.,
                                             Appellant
                                         v.

                      TONIA N. VAUGHN; MUSTANG SALOON
                       ____________________________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                              (W.D. Pa. No. 3-14-cv-00243)
                        District Judge: Honorable Kim R. Gibson
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 September 23, 2016

              Before: CHAGARES, KRAUSE and ROTH, Circuit Judges


                                 (Filed: January 4, 2017)
                                      ___________

                                        OPINION*
                                       ___________

PER CURIAM




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Pro se appellant Gary Vaughn appeals from an order of the United States District

Court for the Western District of Pennsylvania dismissing his complaint for lack of

diversity jurisdiction. We will affirm.

       Gary Vaughn initiated this action in 2014 while incarcerated at F.C.I. Fort Dix in

New Jersey,1 alleging that his wife, Tonia, who is domiciled in Pennsylvania, violated

their pre-nuptial agreement. Prior to his incarceration, Gary was domiciled with Tonia

and their son in Pennsylvania. On September 29, 2015, the District Court dismissed

Vaughn’s complaint for lack of diversity jurisdiction, finding him to be a citizen of

Pennsylvania, and rejecting his “attempts to claim Maine citizenship on the basis of an

alleged future intent to reside there.” Following the District Court’s denial of his motion

for reconsideration, this timely appeal ensued.

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

District Court’s dismissal of a complaint for lack of diversity jurisdiction. See Frett-

Smith v. Vanterpool, 511 F.3d 396, 399 (3d Cir. 2008). Historical or chronological data

which underline a court’s determination are subject to the clearly erroneous rule, and we

“will not disturb the judgment of the District Court unless we are left with the definite

and firm conviction that a mistake has been committed in the District Court's

factfinding.” Id. (internal citations and quotations omitted).


1
  Gary Vaughn is currently serving a 72-month sentence imposed by the Middle District
of Pennsylvania on money laundering and related charges. Gary and Tonia are awaiting
trial on separate money laundering charges in the Western District of Pennsylvania,
where Tonia is currently on pre-trial release.
                                              2
       There is no dispute that Tonia is domiciled in Pennsylvania. Therefore, as the

proponent of diversity jurisdiction, and admitted citizen2 of Pennsylvania prior to his

incarceration, Gary Vaughn must “initially carry the burden of production to rebut the

presumption in favor of an established domicile” – Pennsylvania – and then “carry the

burden of persuasion by proving that a change of domicile occurred, creating diversity of

citizenship.” McCann v. Newman Irrevocable Trust, 458 F.3d 281, 289 (3d Cir. 2006).

He must meet both burdens with a preponderance of the evidence. Id. at 290. And

though a citizen can change his domicile instantly, “[t]o do so . . . he must take up

residence at the new domicile, and he must intend to remain there. Neither the physical

presence nor the intention to remain is alone sufficient.” Krasnov v. Dinan, 465 F.2d

1298, 1300 (3d Cir. 1972).

       Here, Vaughn contends that he “clearly meets the standard of rebuttal for

citizenship with the averment that upon release, he would be returning to the State of

Maine.” But “[i]t is the citizenship of the parties at the time the action is commenced

which is controlling,” and Vaughn’s mere expression of intent to take up residence in

Maine, without more, is insufficient to establish his domicile there.3 Id. Because he has


2
 Citizenship and domicile are synonymous terms for purposes of diversity jurisdiction.
McCann v. Newman Irrevocable Trust, 458 F.3d 281, 286 (3d Cir. 2006).
3
  Vaughn relies on Pierro v. Kugel, 386 F. App'x 308, 309 (3d Cir. 2010), where a panel
of this Court in a non-precedential opinion observed 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.” Vaughn has expressed no intent to remain in New
                                             3
offered no other evidence to rebut the presumption of Pennsylvania domicile, he has

failed to carry his burden. We will affirm the order of the District Court.




Jersey upon his release, but reads Pierro as permitting him to rebut the presumption of
Pennsylvania domicile by expressing his intent to reside in another state – Maine –
following his incarceration. He is mistaken. Domicile requires both physical presence
and intent to remain.
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