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GORDON v. STEELE

May 31, 1974

Susan E. GORDON
v.
James R. STEELE et al.


Knox, District Judge.


The opinion of the court was delivered by: KNOX

The problems of students have lately become numerous with respect to their legal status and the law with respect to them is in a constant state of flux. In recent years, there has been a deluge of litigation with respect to the residence of students for voting purposes. See Shivelhood v. Davis, 336 F. Supp. 1111 (D. Vt. 1971). See also Carrington v. Rash, 380 U.S. 89, 85 S. Ct. 775, 13 L. Ed. 2d 675 (1965) with respect to military personnel in a state. The very size of this problem is shown by the extensive annotation on voting-residence of students in 44 A.L.R. 3d 797 annotating Wilkins v. Bentley, 385 Mich. 670, 189 N.W. 2d 423 (1971). The other situation which is a prolific source of litigation is the question of tuition fees charged by state colleges and universities to non-resident students where the state is required to set up extensive standards in an endeavor to determine who is a resident and who is a non-resident. See for example Wurzer v. University of Houston, 487 F.2d 612 (5th Cir. 1973). It was inevitable that the federal courts would soon feel the impact of this litigation with respect to problems arising under diversity jurisdiction. *fn1" Thinking of the courts in this area is probably colored by numerous constitutional and statutory provisions in various states to the effect that no one shall be deemed to have gained or lost a residence by attendance at an institution of higher learning.

 The thinking is also colored by the traditional rule that the fact that a college student is supposedly maintained by his or her parents is a strong circumstance indicating no gain of residence in the college town. See 44 A.L.R. 3d 822 and this is in accord with Restatement of Conflicts of Laws, Section 30, that a minor child has the same domicile as its father. In these days when nearly all the state legislatures have reduced the age of majority to 18, this poses a more pressing problem with respect to college students who can no longer be put off with the explanation that those under 21 are minors and hence continue their residence with their parents. See the various acts of the Pennsylvania Legislature approved June 16, 1972, particularly 73 Purdon's Pa. Stats. § 2021 permitting persons 18 years of age and older to enter into legal contracts and depriving such persons of the defense of minority.

 The plaintiff Susan Gordon is one of those who was benefited by the provisions of the aforesaid emancipation acts of June 16, 1972. She was born November 20, 1953 and hence was 18 years of age at the time the cause of action hereinmentioned arose and was 19 at the time this action was brought, April 10, 1973.

 The action is one for malpractice against two physicians and an osteopathic hospital in Erie County, Pennsylvania. All of the defendants are citizens of Pennsylvania. There seems little question that prior to August 9, 1972, the plaintiff was also a citizen of Pennsylvania, residing at 227 Goodrich Street, Erie, Pennsylvania, with her parents and if this continued to be her address, her suit must fail for lack of diversity jurisdiction.

 She complains that she suffered an injury to her wrist on February 25, 1972, and there was wrongful diagnosis as to the existence of fractures in the bones by the defendants at that time. She claims that they concluded that there were no such fractures and that as a result she endured continuing pain and disability resulting in hospitalization and medical attention and that her wrist and right hand remain at least partly disabled as the result of the alleged malpractice.

 On August 9, 1972, plaintiff enrolled in Ricks College at Rexburg, Idaho where she rented an apartment which she has retained ever since. Defendants on January 21, 1974, moved to dismiss for lack of diversity. Briefs have been filed, arguments held and the court postponed decision on the matter until further depositions of the plaintiff could be taken. The matter is now before the court for disposition.

 We approach the problem recognizing, of course, that it is citizenship at the time of filing suit, in this case April 10, 1973, which is controlling. Spears v. Ohio River Company, 406 F.2d 344 (3d Cir. 1969). Further, the rule is unquestioned that where plaintiff is challenged on her claim of diversity, the burden is upon her to show by convincing evidence that diversity jurisdiction exists. Krasnov v. Dinan, 465 F.2d 1298 (3d Cir. 1972).

 As is required in all of such cases, we must reckon up the indicators pointing for and against acquisition of a new domicile for diversity jurisdiction purposes. Defendant claims that the following indicate that plaintiff is still a citizen of Pennsylvania and has not acquired a new residence or citizenship in Idaho:

 (1) At the time of application for admission to the college at Rexburg, Idaho, she gave her address as Erie, Pennsylvania.

 (2) The college records dated in 1972 show her address as Erie, Pennsylvania. The same is true of the college records dated May 4, 1973.

 (3) During summer vacations, she worked in Erie, Pennsylvania.

 (4) She held a Pennsylvania Driver's License and had a bank ...


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