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AVINS v. HANNUM

August 21, 1980

Alfred AVINS, Plaintiff,
v.
John B. HANNUM, Clarence R. Moll, Widener College, Inc. and Delaware Law School of Widener College, Inc., Defendants



The opinion of the court was delivered by: BROTMAN

This is an unusual case brought by the founder and former dean of a law school presenting an interesting exercise in the application of the principles of federal jurisdiction worthy of a law school class in civil procedure. The action was instituted by Alfred Avins, Esquire, who founded and served as the first dean of Delaware Law School (DLS), *fn2" setting forth a diverse collection of claims arising from several events, including the accreditation process for DLS, the affiliation of DLS with Widener College (Widener), the resignation of plaintiff as dean of DLS, and his subsequent dismissal as a tenured professor at DLS.

 In his original complaint, plaintiff alleged that jurisdiction is based upon federal questions presented by his claims under the Securities Exchange Act of 1934, 15 U.S.C. §§ 78j(b), 78aa, 28 U.S.C. § 1331, diversity of citizenship, 28 U.S.C. § 1332, and the judicially created doctrine of pendent jurisdiction. On April 23, 1979, the court dismissed with prejudice several counts of plaintiff's complaint, including all of the counts involving the alleged violation of the Securities Exchange Act. On August 3, 1979, the court issued an order granting plaintiff leave to amend his complaint. Plaintiff's amended complaint added seven new claims, including two federal ones, the alleged violation of his rights under the Privileges and Immunities Clause, U.S.Const. Art. IV, § 2, and the alleged violation of the Sherman Act, 15 U.S.C. §§ 1-3. *fn3"

 This matter is now before the court upon the motion of the defendants to dismiss the plaintiff's complaint for lack of subject matter jurisdiction, Fed.R.Civ.P. 12(b)(1), and plaintiff's cross-motion to strike the defendants' defense of lack of jurisdiction. *fn4"

 The court conducted an evidentiary hearing upon these motions on March 11, 1980, at which time it permitted the parties to address the merits of their respective positions, allowed the plaintiff, who is proceeding pro se, to testify in a narrative form, and considered the documents which the parties relied upon in support of their contentions. The court also examined the arguments raised by the parties in their subsequent correspondence. After carefully and painstakingly reviewing all of these materials, the court is prepared to rule as follows on the matters now pending before it.

 I. Diversity Jurisdiction

 The first question presented by the cross-motions of the parties is whether there is the requisite diversity of citizenship to sustain the court's exercise of its jurisdiction under 28 U.S.C. § 1332. That provision states in pertinent part:

 
(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $ 10,000, exclusive of interest and costs, and is between-
 
(1) citizens of different States;
 
(2) citizens of a State and citizens or subjects of a foreign state;
 
(3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and
 
(4) a foreign state, defined in section 1063(a) of this title, as plaintiff and citizens of a State or different States.

 Jurisdiction is asserted in this case under the provision for actions between citizens of different states. In his complaint, plaintiff alleges that he is "a resident and domiciliary" of Washington, D.C., *fn5" defendants John B. Hannum and Clarence R. Moll are residents of the State of Pennsylvania, *fn6" defendant Widener "is a corporation organized and existing under the laws of Pennsylvania," and defendant Delaware Law School "is a Delaware corporation". *fn7" Defendants have challenged the plaintiff's assertion of District of Columbia citizenship and have claimed that plaintiff was a citizen of the State of Delaware at the relevant time in this matter. If defendants are correct there is incomplete diversity of citizenship, thereby depriving the court of the power to exercise its diversity jurisdiction. Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L. Ed. 435 (1806). Before considering the merits of the parties' legal arguments on the question of the plaintiff's citizenship, the court shall briefly recount the factual background from which the issue of citizenship arose.

 Plaintiff was born and raised in New York City, where he attended Hunter College (B.A. 1954), Columbia Law School (L.L.B. 1956) and New York University Law School (L.L.M. 1957). He spent the 1957-58 school year in Newark, New Jersey, serving as an instructor at Rutgers University Law School. From 1958 through 1960 plaintiff lived in Washington, D.C. while working for the Federal Power Commission and the National Labor Relations Board. In 1960 he moved to Chicago, Illinois. He studied at the University of Chicago Law School, where he was awarded his M.L. (1962) and J.S.D. degrees (1963). During his stay in Chicago, he served as an assistant professor of law at John Marshall Law School and Chicago Kent College of Law. In 1963 he left Chicago, spending the summer of 1963 in New York City and then leaving for England that fall. He studied for two years at Cambridge University, receiving a Ph.D. in law in June 1965. He then returned to the United States and spent the next two years in Memphis, Tennessee, with the exception of his summers, which were spent in New York City. While in Memphis he served as a professor of law at Memphis State University Law School and briefly sought the Republican party nomination for a seat in the United States Congress. Plaintiff left Memphis in June 1967 to accept a one year appointment as an assistant district attorney in New York City. At the end of his term in 1968, he left the district attorney's office to work in Richard Nixon's presidential campaign in New York and unsuccessfully ran as the Conservative party candidate for a New York state judgeship. Plaintiff remained in New York following the 1968 election while he sought a position with the government and engaged in legal research.

 Avins first came to Delaware in 1970 to work in the United States Senate campaign of then Representative William Roth. Although Avins stated that he worked in the Roth campaign because he believed that it would help him to obtain a position with the federal government, he did not leave Delaware after the end of the campaign. Instead he remained in Delaware, gained admission to the Delaware bar and accepted a job as special counsel to the Delaware School Board. In the spring of 1971, he founded Delaware Law School and became its first dean. Plaintiff's activities at Delaware Law School became so extensive and time-consuming that he resigned his position with the Delaware School Board in the spring of 1972 to devote his full time to DLS. Avins served as dean of DLS until September, 1974, when he stepped down from his administrative post while remaining as a tenured member of the faculty. In 1975 the DLS Board of Trustees voted to affiliate with Widener in a successful attempt to obtain provisional accreditation by the American Bar Association (ABA) before the first DLS class graduated. Avins opposed the decision to affiliate and he participated as an intervenor or plaintiff in several actions in this district and in other jurisdictions challenging the affiliation of DLS with Widener. In June 1977, while still a faculty member at DLS, he became one of the incorporators of District of Columbia Law School, a new law school located in Washington, D.C. Plaintiff did not resign from his teaching post at DLS upon the formation of District of Columbia Law School and only assumed limited responsibilities at the new law school, which only conducted weekend classes. He served as a consultant, member of the board of trustees, and taught one weekend class. Plaintiff remained at DLS until April 20, 1978, when he was dismissed from the faculty. Even after his dismissal from his teaching post, plaintiff remained in Delaware, allegedly for the purpose of working on two cases pending in the United States District Court for the District of Delaware related to the affiliation of DLS and Widener. He arranged to share an apartment in New York City that summer, as he had for several years while living in Delaware. Plaintiff rented an efficiency apartment in Washington, D.C. as of November 1978, although he retained his Delaware apartment through the end of October 1979, well past the January 9, 1979 filing date of plaintiff's complaint in the instant action.

 Plaintiff offers two arguments in support of his claim that the court may exercise diversity jurisdiction to hear his complaint. First, plaintiff contends that he was never a citizen of the State of Delaware. Consequently, he could not have been a citizen of that state for diversity purposes at the time he instituted the action. In support of this argument, plaintiff attempts to show that he remained a citizen of the State of New York throughout most or all of the time that he was in Delaware, presumably until he allegedly became a citizen of the District of Columbia. See "Guide to Plaintiff's Documents and Exhibits" (Guide), at 1-5; Transcript of March 11, 1980 hearing (Tr.), at 7, 20-22. Second, plaintiff argues that even if the court concludes that he was a citizen of the State of Delaware at the time he filed his complaint, he subsequently changed his state citizenship to either the District of Columbia or the State of New Hampshire and that the court may consider this change of citizenship in determining if diversity jurisdiction exists in this action. *fn8"

 Before the court can assess the parties' conflicting claims concerning the plaintiff's citizenship, it must first note the proper reference time for determining a party's citizenship for the purposes of diversity jurisdiction. The cases have clearly established that "(w)hether federal diversity jurisdiction exists is determined by examining the citizenship of the parties at the time the action is commenced." 13 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure: Jurisdiction § 3608, at 653 & n.1 (1975 and Supp. 1980). The court shall now review the principles that govern such a determination.

 First and foremost, because federal courts, unlike most state courts, are courts of limited jurisdiction, they must begin their jurisdictional analysis with a presumption against the existence of federal jurisdiction in any given case. As Professors Wright, Miller and Cooper observe in their treatise:

 Id., § 3522, at 45-46 (footnotes omitted). Thus, the proponent of federal court jurisdiction bears the burden of persuasion, Gibbs v. Buck, 307 U.S. 66, 72, 59 S. Ct. 725, 729, 83 L. Ed. 1111 (1939); McNutt v. General Motors Acceptance Corporation of Indiana, Inc., 298 U.S. 178, 189, 56 S. Ct. 780, 785, 80 L. Ed. 1135 (1936), and at least the initial burden of producing evidence in support of his claim of federal jurisdiction. See 13 C. Wright, A. Miller, & E. Cooper, supra, § 3611, at 710-13.

 Second, in applying the general presumption against the existence of federal jurisdiction, a court may also apply certain corollary principles which either shift the burden of production to the party contesting the court's jurisdiction or may raise the standard of proof which the party asserting jurisdiction must satisfy to establish the proper exercise of federal jurisdiction in a given case.

 One corollary which may be relevant in this case is the "presumption in favor of an original or former domicile as against an acquired one," Hamlin v. Holland, 256 F. Supp. 25, 27 (E.D.Pa.1966); Herzog v. Herzog, 333 F. Supp. 477, 478 (W.D.Pa.1971); 13 C. Wright, A. Miller, & E. Cooper, supra, § 3612, at 720, or as it is alternatively described, "the presumption that a domicile, once established, continues until it is changed." 13 C. Wright, A. Miller, & E. Cooper, supra, § 3611, at 711. Although some courts inaccurately describe the effect of this presumption as one of shifting the burden of proof to the party claiming that the individual in question has changed his citizenship from one state to another, Kaiser v. Loomis, 391 F.2d 1007, 1010 (6th Cir. 1968); Stine v. Moore, 213 F.2d 446, 447 (5th Cir. 1954), the more precise statement of the impact of this presumption is that it merely shifts the burden of production of evidence on the issue of the individual's citizenship, and does not shift the burden of persuasion, which remains with the proponent of federal jurisdiction. Slaughter v. Toye Bros. Yellow Cab Company, 359 F.2d 954, 955 (5th Cir. 1966). Where the proponent is also the party contending that there has been a change of citizenship of one of the litigants, the effect of the presumption is to raise the standard of proof which that party must bear. 13 C. Wright, A. Miller & E. Cooper, supra, § 3612, at 721. The proponent must then prove that there has been a change of citizenship by clear and convincing proof. Herzog, supra, at 478.

 Having reviewed the principles allocating the burdens of production and persuasion, the court shall now review the definition of "citizenship" for the purpose of determining the existence of diversity jurisdiction and discuss the factors which the court may consider in making such a determination.

 An individual is considered to be a "citizen" of a given state for the purpose of asserting diversity jurisdiction if he is (1) domiciled within that state; and (2) a citizen of the United States. 13 C. Wright, A. Miller & E. Cooper, supra, § 3611, at 697-98. Since there is no dispute as to plaintiff's status as a United States citizen, the court need only address the issue of plaintiff's qualifications under the first prong of this definition of citizenship, namely, whether the plaintiff was a domiciliary of the State of Delaware or the District of Columbia at the time he instituted this action.

 
Although variously expressed, the judicial standard of domicil is essentially equivalent to the lay idea of "home." The first requirement, presenting no problem of proof, is simply some residential connection with the place in question. The second is often defined as an intent to remain at that place with no present intent to remove therefrom, or as the intent to make a home. Since, however, the courts rely most strongly on evidence consisting of the party's acts and tend to minimize direct evidence of intent, it would seem more correct to define the mental element in terms of disposition towards permanence rather than conscious intention. The Supreme Court has adopted this more spontaneous conception, which perhaps may best be expressed in the phrase "attitude of attachment."

 Note, Evidentiary Factors in the Determination of Domicil, 61 Harv.L.Rev. 1232, 1234 (1948). In applying this definition to determine the domicile of a given individual, the court is to consider "all of the circumstances of the case," 13 C. Wright, A. Miller & E. Cooper, supra, § 3612, at 716, including, "current residence, voting registration and voting practices; location of personal and real property; location of brokerage and bank accounts; membership in unions, fraternal organizations, churches, clubs, and other associations, place of employment or business; driver's license and automobile registration; payment of taxes; as well as several others." Id., at 717. *fn9"

 Plaintiff may rely upon some of these factors in support of his claim that he was a New York domiciliary during his stay in Delaware and that he subsequently became a domiciliary of the District of Columbia prior to the institution of this action. First, he points out that while he was in Delaware he also had a shared apartment in New York City, where he kept some of his clothes and personal possessions and where he spent some of his time while he was working in Delaware. Plaintiff also relies upon his New York driver's license, library card, and savings account, as well as his past political involvement in New York, including his unsuccessful candidacy for a New York judgeship. To bolster the second half of his argument, namely, that he abandoned his New York domicile to become a domiciliary of the District of Columbia, Avins mentions his acquisition of an efficiency apartment in Washington, transfer of some of his possessions to that area, acquisition of a Washington driver's license and savings account, transfer of his checking account from Delaware to Washington, retirement from the Delaware bar in 1978, and the termination of his lease on his Wilmington, Delaware apartment in October 1979.

 Defendants, in turn, have pointed to many factors supporting their position that plaintiff was a domiciliary of Delaware at the time he was employed by Delaware Law School and that he had not changed his domicile as of the date he filed this action. They refer to the fact that plaintiff lived in Delaware for nine years before filing this action, first in rented rooms, then from 1972 through 1975 in a building on the DLS campus, and from 1975 through October 1979 in a four room apartment in Wilmington, Delaware. They also stress that he kept many personal and business possessions in his Delaware apartment, which he used for both residential and business purposes, spent the vast majority of his time in Delaware since 1970 and did not leave the state soon after he was dismissed from his position at Delaware Law School in 1978. As additional evidence of plaintiff's alleged Delaware domicile, defendants cite his Delaware savings and checking accounts, receipt of most of his mail in Delaware, Delaware driver's license and automobile registration, and renewal of his Delaware driver's license after his acquisition of a Washington license. Finally, defendants ...


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