want to have his only automobile there and that he was willing to register it and renew his driver's license in Delaware to achieve that objective. That presence in the State of Delaware, even if for the purpose of preparing for and trying his claims in his Delaware lawsuits, adds weight to the argument that he had not yet abandoned his alleged domicile in Delaware, even if he intended to leave the state at some time in the future.
This conclusion is reinforced by the statement plaintiff made on January 22, 1979, less than two weeks after he filed the instant complaint, when he registered with the Association of American Law Schools to express his interest in obtaining a position as a visiting professor. Avins stated on the organization's visiting faculty register that his law school affiliation was "Delaware Law School (Emeritus)" and gave both his Wilmington apartment and his Wilmington post office box as his address. This raises serious doubts as to plaintiff's claim that as of December 1, 1978 he had become a domiciliary of the District of Columbia.
After carefully weighing and balancing all of the above mentioned factors and assessing the demeanor of the plaintiff, the court believes that it could fairly conclude that Avins became a domiciliary of the State of Delaware before he was dismissed from the faculty of Delaware Law School, he failed to introduce sufficient evidence to rebut the presumption that he remained a Delaware domiciliary when he instituted this action, and consequently, he has not met his burden of establishing the court's diversity jurisdiction. However, all of the factors discussed above are overshadowed by an even more significant one which clearly indicates that the plaintiff cannot invoke the diversity jurisdiction of the court, namely, his prior declarations that he was a citizen of the State of Delaware in other lawsuits arising from the same dispute as the instant action.
The first such action was Plechner v. Widener College, Inc., 418 F. Supp. 1282 (E.D.Pa.1976), aff'd, 569 F.2d 1250 (3rd Cir. 1977). That suit was brought to set aside the affiliation of Delaware Law School with Widener College. On January 24, 1976, Avins moved to intervene and filed a complaint as an intervenor, alleging that he was "a citizen and resident of Delaware," the defendants were citizens of other states, "(jurisdiction) of the original action is founded pursuant to 28 U.S.C. sec. 1332, and pendent jurisdiction of state claims, and jurisdiction existed when plaintiff Avins intervened." Complaint of Plaintiff Avins, Intervenor, at 1. That litigation was terminated upon the entry of judgment for defendants after a bench trial conducted by the Honorable Edward R. Becker of this Court.
The second case in which Avins was a party was Avins v. White, No. 346-1976 (Del.Super.Ct., filed March 18, 1976). This matter concerned Avins' claim that he had been defamed by Professor James P. White during an accreditation review of Delaware Law School by an evaluation team from the ABA. In his complaint, Avins stated that "(plaintiff) is a resident of the State of Delaware" and "(defendant) is not a resident of the State of Delaware." Complaint, at 1. On April 7, 1976, defendant White filed a petition to remove the action to the United States District Court for the District of Delaware, in which he stated that this action could have been brought in federal district court pursuant to 28 U.S.C. § 1332, and it was therefore removable to federal court by 28 U.S.C. § 1441. Avins did not object to the removal of this action to federal district court, where it was tried before the Honorable Walter K. Stapleton. The jury returned its verdict on September 26, 1978, and its award of $ 50,000 in damages for Avins' alleged defamation was recently reversed and remanded for a new trial. Avins v. White, 627 F.2d 637 (3rd Cir. 1980).
Another case brought by the plaintiff arising from the affiliation of DLS and Widener was Avins v. Widener College, Inc., No. 76-222 (D.Del., filed July 8, 1976). In that matter, plaintiff alleged that he "has his residence at 1908 Washington Street, Wilmington, Delaware," defendant Widener was a corporation organized under the laws of Pennsylvania, and "(t)his Court has jurisdiction of this action by virtue of 28 U.S.C. sec. 1332." Consolidated Amended Complaint, at 1. That case was tried before the Honorable James L. Latchum in the summer of 1979 and the jury returned a verdict of no cause for action on July 26, 1979.
In addition to his participation in the above-listed cases, Avins has also been named as a defendant in an action arising from the accreditation process for DLS. A complaint for libel was filed against him by the Honorable G. Fred DiBona, Judge of the Court of Common Pleas of Philadelphia County, Pennsylvania, in the United States District Court for the Eastern District of Pennsylvania, DiBona v. Avins, No. 78-3057 (E.D.Pa., filed September 12, 1978). Judge DiBona alleged in his complaint that Avins "is a citizen of the State of Delaware residing at 1908 Washington Street in the City of Wilmington." Complaint, at 1. Avins failed to deny this assertion when he filed his answer to DiBona's complaint, thereby admitting the allegation. Fed.R.Civ.P. 8(d).
Plaintiff has attempted to explain his prior allegations of Delaware citizenship by asserting that he was compelled by Delaware Law School's residence policy to claim Delaware citizenship, even though he contends that he continued to be a citizen of New York when he filed the pleadings. He refers to a resolution adopted by the DLS Board of Trustees on February 7, 1976, which provided in pertinent part:
no full-time faculty person will be employed or retained in employment as a full-time member of the faculty whose place of residence (domicile) and that of his immediate family is not within a radius of forty (40) miles from the location of Delaware Law School. It is understood, however, that some deviation from this rule may be made during the first year of employment. Under extraordinary circumstances this may be extended as much as one semester beyond the first year.
Plaintiff contends that this requirement was adopted for the purpose of providing a pretext for his dismissal unless he ceased to contend that he was a New York domiciliary. He explained:
It is true . . . I have a modicum of legal training and understood if I pleaded I was a citizen of New York it would be used in disciplinary proceedings following as soon as they could reasonably get to it. So I was in effect compelled to adopt Delaware citizenship.