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Legal Memorandum: Domicile at the Time of the Complaint

Issue: Is diversity jurisdiction proper when a U.S. citizen moves out of the U.S. before the complaint is filed?

Area of Law: Immigration & Naturalization Law, Litigation & Procedure
Keywords: Diversity jurisdiction; Necessity; Domicile at time of complaint
Jurisdiction: Federal
Cited Cases: 893 F. Supp. 471; 490 U.S. 826; 85 F.3d 244; 615 F.2d 1176; 360 F. Supp. 2d 208
Cited Statutes: 28 U.S.C. § 1332(a)(1); Restatement (Second) of the Foreign Relations Law of the United States § 171(c)
Date: 05/01/2005

The diversity jurisdiction provision, 28 U.S.C. § 1332(a)(1) permits federal subject matter jurisdiction if the parties are citizens of different states.  To invoke this provision, a plaintiff must demonstrate that at the time of making the complaint, he or she was a citizen of a state or territory other than that of the defendant.  It is domicile at the time of the complaint that will establish the state citizenship necessary for diversity jurisdiction.

A person’s domicile is generally the location at which the person is physically present with the intent to make the place her home.  Sadat v. Mertes, 615 F.2d at 1180; Pemberton v. Colonna, 189 F. Supp. 430, 431 (E.D. Pa. 1960).  See Coury v. Prot, 85 F.3d at 250 (requiring an intention to remain at a new physical location to change one’s domicile); Liakakos v. Cigna Corp., 704 F. Supp. 583, 586 (E.D. Pa. 1988).  However, if a plaintiff has moved to a foreign country before filing his or her complaint with the intent to remain there, his or her domicile had effectively changed.

The burden of establishing one’s domicile is upon the party seeking to invoke jurisdiction.  Coury v. Prot, 85 F.3d at 250.  When a change of domicile is at issue, such factors as property ownership, voter registration, payment of property or income taxes, banking activity, drivers’ licenses, and social affiliations are to be considered.  Liakakos v. Cigna Corp., 704 F. Supp. at 587; Coury v. Prot, 85 F.3d at 251.  Thus, while […]

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