223 F. 661 | D. Mass. | 1915
This is an action at law, originally brought by the plaintiff in this court by a writ dated May 18, 1914. The only ground on which it is contended that this court has jurisdiction of the controversy is an alleged diversity of citizenship. In the writ the plaintiff is described as “of Providence, in the state of Rhode
The plaintiff is an efficiency engineer. Prior to March 8, 1914, he had been a resident of Boston and a citizen of Massachusetts. He is unmarried, has no family, and lived in lodgings in Boston, where his office was and is.
Some time prior to March 8, 1914, he had done some work at the defendant’s manufacturing plant, in the course of which he had received physical injuries, which he contends were caused by the negligence of the defendant, and he had brought an action to recover damages therefor in the Massachusetts cohrt. That action had been discontinued by him prior to March 8, 1914. On that date he sent the property which he had at his lodgings, namely, a trunk and some bags, containing clothes, books, and personal effects, to Providence, R. I., and went there and engaged lodgings, and he gave up his lodgings in Boston. But he retained his office in Boston, and has never made any change in that. He has never had any office in Providence, and no business in Rhode Island since March 8, 1914. He had no family in Providence. The only reason why he removed there was, as he admits, in order to obtain a residence in Rhode -Island for the purpose of bringing this action in the federal court. Since his alleged change of residence, he has spent comparatively little time in Providence. Occasionally he has been there for a few days at a time, occasionally he has spent week ends there, and on one occasion he was there for three or four weeks continuously. While the‘evidence is not entirely clear, I infer that he has spent more nights in Boston since March 8th than in Providence. A considerable part of the time his work has required him to travel, or to be temporarily stationed at various places where he was for the time being engaged in his professional work. When so traveling he customarily registered as of Boston. Under date of April 18, 1914, he wrote to the registrars of voters of Boston, ■ asking to have his name taken off the voting list of Boston, on the ground that he had become a resident of Providence on March 9, 1914; and under the same date he wrote to the registrar of voters of Providence, asking to have his name placed on the voting list of that city. In reply to this last letter he was informed that he must apply in person to the board of canvassers and registration in Providence, and he never did so. All his mail comes to his Boston office, and he pays therefrom the bills for his lodging in Providence. In endeavoring to change his residence, he acted under the advice of counsel, and intended to do whatever was necessary to secure a residence in Rhode Island, in order that he might thereby acquire the right to sue in the federal court. After March 8, 1914, he kept no regular lodging in Boston. When he stayed overnight in Boston, he customarily took a room either at the place where he had formerly lodged or at another lodging house where he was known; but such hiring
I f the plaintiff has in fact changed his domicile, his reason for doing so is immaterial. Morris v. Gilmer, 129 U. S. 315, 328, 9 Sup. Ct. 289, 32 L. Ed. 690. The question is whether, upon the facts stated, with such inferences as are properly to be drawn therefrom, a real change of domicile has been established. In Ennis, Adm’r, v. Smith, 14 How. (N. S.) 400, 423, 14 L. Ed. 472, it is said in reference to a change of domicile:
“But there mast he, to com,¡Unto it, actual residence in the place, with the intention that it is to be a principal and permanent residence. * * * A removal which does not contompUite an absence from the former domicile 'for an indefinite and uncertain time is not a change of it.”
In Morris v. Gilmer, supra, it is said:
“There must be an actual, not pretended, change of domicile; in other words, the removal must be ‘a real one, animo manendi, and not merely ostensible.’ ”
The facts in Morris v. Gilmer seem to me to have been stronger in favor of the plaintiff than those here, but it was held that there had been no change of domicile. The present case resembles pretty closely Andrews, Adm’x, v. Andrews, 176 Mass. 92, 57 N. E. 333, where it was held that a domicile had not been acquired in Dakota. See, too, 1 Poster Fed. Pr. (4th Ed.) § 19, p. 5.
“The burden is on the defendant to convince the court to a legal certainty of its lack of jurisdiction.”
The expression “to a legal certainty,” in this connection, seems to have originated in Barry v. Edmunds, 116 U. S. 550, 559, 6 Sup. Ct. 501, 29 L. Ed. 729, where it was used with reference to a plea in abatement based upon an allegation that the amount in controversy was in fact less than the jurisdictional amount, although a greater sum was claimed by the plaintiff as damages for an alleged assault upon him by the defendant. The same expression was approved in Deputron v. Young, 134 U. S. 241, 252, 10 Sup. Ct. 539, 33 L. Ed. 923, where_ it was used with reference to- a petition to dismiss for lack of diversity of citizenship, which was not filed until after the case had been tried on its merits and a verdict had been returned against the petitioner. The facts on which these two decisions rest seem to me essentially different from those of the present case. In Barry v. Edmunds the court was called upon by the plea in abatement to speculate as to the utmost verdict which a jury was likely to return for the assault. In Deputron v. Young many months had gone by since the case was at issue, and it had been tried on the merits and decided against the petitioner before the petition to dismiss was filed. Obviously, under such circumstances, every doubt as to the jurisdiction ought to be resolved in favor thereof.
In this case, on the other hand, the plea in abatement was seasonably filed within the time for appearance. At the very beginning of
I find and rule that .the plaintiff was not, at the time when this action was brought, a resident of Rhode Island, that he was at that time a resident of Massachusetts, that there is no diversity of citizenship, and that this court is without jurisdiction. The plea in abatement is adjudged good.