* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 28 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
JERRY GRIMES,

Plaintiff-Appellant,

v. ROY TAYLOR; PAT TAYLOR,

Defendants-Appellees. No. 99-7112 (D.C. No. 98-CV-493-BU) (E.D. Okla.)

ORDER AND JUDGMENT *

Before TACHA , PORFILIO , and EBEL , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. **See** Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Alleging that he was a citizen of Texas, plaintiff/ appellant Jerry Grimes sued Roy and Pat Taylor for negligence after he was injured at their Oklahoma-2-

farm. He appeals from dismissal of his complaint u nder Fed. R. Civ. P. 12(b)(1) for lack of diversity jurisdiction. Our jurisdicti on arises under 28 U.S.C. § 1291, and we affirm. Mr. Grimes was injured on September 1, 1998, while unloading a bale of hay in Atoka County, Oklahoma. He was hospitalizedin Sherman, Texas until October 14, 1998. After his release from the hospi tal, he stayed with his daughter in Atoka, and was residing there at the time the lawsuit was filed on October 15, 1998. Mr. Grimes alleged that he lived in, and int ended to return to, a home in Mesquite, Texas that his wife had owned since 1994. Defendants challenged diversity jurisdiction, and after allowing the part ies to supplement their pleadings, the district court ruled that Mr. Grimes was a citi zen of Oklahoma, thus barring jurisdiction in the federal courts. The court relied on the following undisputed facts in making its finding: (1) Grimes last voted in Oklahoma; (2) he listed hi s address as Atoka, Oklahoma, on W-2 forms in 1995, 1996, and 1998; (3) he was employed by a business located in Pushmataha County, Oklahoma, at the time of the accident; (4) his vehicles were registered and tagged in Oklahoma; (5 ) shortly after the accident, Grimes’ daughter told a newspaper that Grimes resid ed in Oklahoma; (6) Grimes was listed in the 1998 Atoka telephone book with an Atoka address; (7) Grimes stayed in Atoka both prior to and after the acciden t; and (8) Grimes’ other-3-

daughter testified that she and her husband paid th e mortgage on and lived in the Mesquite, Texas residence owned by Grimes’ wife. See Appellant’s App. at 131-33. A finding of “citizenship and diversity jurisdictio n, a mixed question which is primarily factual, should be reviewed unde r the clearly erroneous standard.” State Farm Mut. Auto. Ins. Co. v. Dyer , 19 F.3d 514, 518 (10th Cir. 1994). “A finding of fact is not clearly erroneous unless ‘it is without factual support in the record, or if the appellate court, a fter reviewing all the evidence, is left with the definite and firm conviction that a mistake has been made.’” Las Vegas Ice & Cold Storage Co. v. Far West Bank , 893 F.2d 1182, 1185 (10th Cir. 1990) (citation omitted). Mr. Grimes argues on appeal that the court’s finding of Oklahoma citizenship is clearly erroneous because ( 1) he was entitled to a presumption of domicile with his wife, whom he clai ms was residing in Mesquite; (2) he had a Texas driver’s license; (3) his primary employment had been in Texas; (4) he had a Texas bank account; and (5) he had no intent to establish a domicile in Oklahoma. The record, however, belie s Mr. Grimes’ arguments. We note that the record shows that both Mr. Grimes and his wife resided in Atoka with one of their daughters from the date suit was filed until at least April 28, 1999, when Mrs. Grimes’ deposition was taken, thus no presumption arises that he was domiciled in Mesquite. **See** Appellant’s App. at 107; **see also** Leavitt v.-4-

Scott , 338 F.2d 749, 751 (10th Cir. 1964) (holding that diversity is determined at time cause of action is filed, not at time accidentoccurs). The record also shows that Mr. and Mrs. Grimes were separated at the time she purchased the Mesquite property. See Appellant’s App. at 109. Mr. Grimes’ Texas bank a ccount showed a zero balance in April 1998, see id. at 79, and he testified he had not used a bank since before the accident; see Appellee’s Supp. App. at 27. The record establishes that Mr. Grimes had only a Texas licens e even when he admittedly was domiciled in Atoka from 1986 through 1993, see id. at 49-51, so the absence of an Oklahoma license in 1998 bore no legal signif icance. Finally, although there is evidence that Mr. Grimes had been employedin Texas in 1997, the district court correctly noted that his 1998 W-2 fo rms listed Atoka as his address. There is record support for every factor the distri ct court considered in determining domicile. The district court’s factual finding that Mr. Grimes was domiciled in Oklahoma at the time this action was f iled was not clearly

erroneous. The judgment of the United States District Court for the Eastern District of Oklahoma is AFFIRMED. Entered for the Court

David M. Ebel Circuit Judge