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Shepard Johnson v. Chester Mitchell

August 7, 2012

SHEPARD JOHNSON, PLAINTIFF,
v.
CHESTER MITCHELL, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER AND FINDINGS AND RECOMMENDATIONS

On May 4, 2012, the court, based on information in prior court filings suggesting that defendant Ford Hermanson may have been domiciled in Panama at the time he was joined as a defendant in this action on October 28, 2010, sua sponte raised the issue of whether dismissal of defendant Ford Hermanson pursuant to Fed. R. Civ. P. 21 may be necessary to cure potential defects in federal subject matter jurisdiction. See FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 230-31 (1990) ("The federal courts are under an independent obligation to examine their own jurisdiction...."); Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 828-29 (1989) (holding that United States citizens domiciled in a foreign country cannot be parties to a diversity action in federal court, because they destroy complete diversity).

The court ordered plaintiff, within 21 days of the date of service of that order, to file either (a) a brief, limited to 15 pages, along with a declaration relating any facts and attaching any evidence plaintiff had that defendant Ford Hermanson was domiciled in a U.S. state other than California as of October 28, 2010, or (b) a request for dismissal of defendant Ford Hermanson from the action. In turn, in the event plaintiff elected to brief the issue of defendant Ford Hermanson's domicile, defendant was permitted to file a responsive brief, limited to 15 pages, along with a declaration relating any facts and attaching any evidence defendant Ford Hermanson had that he was domiciled outside of the United States as of October 28, 2010. The court order further provided that the matter would then be submitted on the record without oral argument with a written order and/or findings and recommendations to follow. (See Dkt. No. 197 at 15.)

On May 25, 2012, plaintiff filed his brief and supporting documentation in response to the court's order, and on June 11, 2012, defendant Ford Hermanson filed his responsive brief and supporting documentation. (Dkt. Nos. 202, 202-1, 206.) Subsequently, on June 19, 2012, plaintiff filed a request for an oral hearing on the matter. (Dkt. No. 209.) After reviewing the parties' briefs and supporting documents, the court agreed that a hearing and oral argument would be beneficial in resolving the matter, and accordingly set a hearing for August 2, 2012 at 10:00 a.m. (Dkt. No. 210.)

At the hearing, plaintiff and defendant Ford Hermanson appeared pro se. After considering the parties' briefs and oral arguments, the court's record in this matter, and the applicable law, the court now FINDS AS FOLLOWS: BACKGROUND

The facts and procedural history of this case have previously been set forth in detail in several of the court's prior orders and findings and recommendations. (See e.g. Dkt. Nos. 169, 197, 200.) Accordingly, it will not be repeated here. Moreover, the instant proceedings do not involve the substantive allegations and claims in the case; instead, the sole issue to be decided here is whether defendant Ford Hermanson was domiciled in Panama or Minnesota as of October 28, 2010, the date he was joined as a defendant in this action.

DISCUSSION

The Ninth Circuit has established several principles to guide the inquiry of where a party is domiciled:

First, the party asserting diversity jurisdiction bears the burden of proof...Second, a person is 'domiciled' in a location where he or she has established a 'fixed habitation or abode in a particular place, and [intends] to remain there permanently or indefinitely.'...Third, the existence of domicile for purposes of diversity is determined as of the time the lawsuit is filed...Finally, a person's old domicile is not lost until a new one is acquired...A change in domicile requires the confluence of (a) physical presence at the new location with (b) an intention to remain there indefinitely."...Courts in other jurisdictions have recognized additional principles relevant to our present analysis. The courts have held that the determination of an individual's domicile involves a number of factors (no single factor controlling), including: current residence, voting registration and voting practices, location of personal and real property, location of brokerage and bank accounts, location of spouse and family, membership in unions and other organizations, place of employment or business, driver's license and automobile registration, and payment of taxes...The courts have also stated that domicile is evaluated in terms of 'objective facts,' and that 'statements of intent are entitled to little weight when in conflict with facts.'

Lew v. Moss, 797 F.2d 747, 749-50 (9th Cir. 1986) (internal citations omitted). Domicile is not the same as residency. For example, a United States citizen may be residing in a particular country temporarily for a specific purpose, such as a temporary work assignment, intending to return permanently to a U.S. state after a definite period of time. However, a party's place of residence is prima facie evidence of domicile. State Farm Mut. Automobile Ins. Co. v. Dyer, 19 F.3d 514, 520 (10th Cir. 1994).

As the court observed at the hearing, both parties made commendable efforts to discover and present the facts, evidence, and arguments relevant to the determination of defendant's domicile. Admittedly, the question is a somewhat close one. Nevertheless, for the reasons set forth below, the court ultimately finds that the weight of the evidence supports a finding that defendant Ford Hermanson was domiciled in Panama as of October 28, 2010.*fn1

There is no dispute that defendant was domiciled in Minnesota for many years while he lived and worked there with his former wife, Patricia Hermanson. In 2000, defendant purchased land from plaintiff in Panama on which he built a retirement home. (Dkt. No. 206 at 1-2, ¶ 1.) Although he asserts that he lived there every year since 2004, his stays at the Panama house appear to initially have been on a non-permanent basis for extended vacations during the winter months in Minnesota. (Id.)

However, in 2008, defendant was granted a Pensionado card by Panama, which is essentially a type of permanent resident status mostly for retirees. See http://www.embassyofpanama.org/cms/retire_advantages3.php. (Dkt. No. 206, ¶ 2, Ex. C.) To receive this status, plaintiff had to make a showing of sufficient income and take medical tests to demonstrate good health. (Dkt. No. 206, ¶ 2.) Thereafter, defendant and his wife divorced in February 2010. (Dkt. No. 206, ¶ 1; see also Dkt. No. 202-1 at 3-18.) Defendant states that he considered Panama his permanent home at least as of his divorce in February 2010, when the Panama house became his permanent residence. (Dkt. No. 206, ¶¶ 1, 8.) At the hearing, defendant explained, and plaintiff mostly agreed, that the Panama house is a fairly unique property that is accessible only by boat and a special type of elevator, which was constructed by defendant and facilitates transport from the boat dock up to the house. Lighting for the house is provided entirely by solar energy, a small generator provides electricity, and defendant constructed a type of makeshift "water tower" to provide water to the house. The house is a fully furnished 3 bedroom, 3 bathroom home, which defendant never leases or rents out. (Dkt. No. 206, ¶ 3, Ex. A.) The property, fully paid for in 2000, is now recorded in the Public Registry in Panama as of July 2011 when the deed was finally transferred and recorded. (Dkt. No. 206, ¶ 7, Ex. K.)

In the February 22, 2010 divorce decree, defendant was awarded the house and real property in Panama; some real property in Minnesota, including a property on Evergreen Shores Drive in Detroit Lakes, Minnesota; some financial assets (annuities and mutual funds); and certain personal property (including classic automobiles, antique chairs, tractors, tools, etc.) (Dkt. No. 202-1 at 3-18.) Although the parties devote significant discussion to the location of various items of defendant's personal property, the court does not find those facts to be persuasive one way or the other. Location of personal property is one objective factor to consider in the analysis under Lew and while defendant points out that he generally stores and maintains his personal items, tools, and furniture in his Panama home (dkt. no. 206, ¶ 3), there is also no dispute that defendant still had cars, furniture, tools, etc. in Minnesota as of October 28, 2010.

However, this is not entirely surprising, given that many of these items were awarded in the divorce decree earlier that year, may have been difficult to transport to Panama (especially given the accessibility issues at the Panama house), and may have taken time to sell. At the hearing, defendant also explained that he only uses a boat for transport in Panama, and therefore did not need to move his cars to Panama. It naturally follows that defendant's Minnesota cars would be titled and registered in Minnesota. Defendant stated that he has a Panama boating license for transport there and a Minnesota driver's license for driving during his visits to family and friends in Minnesota. Furthermore, defendant's former wife, in a declaration submitted by plaintiff, specifically complained that much of defendant's Minnesota personal property was stored on her property as of October 28, 2010 until it was later removed at her insistence. (Dkt. No. 202-1 at 26, ΒΆΒΆ 4-5, 8-9.) Some of the automobiles have ...


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