PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 10

- 2328

_____________

GLORIA WASHINGTON, Appellant

v.

HOVENSA LLC;

TRIANGLE CONSTRUCTION AND MAINTENANCE, INC.

_____________

Appeal from the District Court

o f the Virgin Islands (D.C. Civil No. 1

- 06

- cv

- 00097 ) District Judge: Honorable Harvey Bartle, III

_____________

Argued April 12, 2011

Before: SCIRICA, RENDELL and AMB RO, Circuit Judges

(Filed : July 21 , 2011 )

_____________2 K. Glenda Cameron, Esq.

Law Offices of K.G. Cameron 2006 Eastern Suburb, Suite 101 Christiansted, St Croix

USVI 00820

Lee J. Rohn, Esq. [Argued] Law Offices of Rhon & Carpenter 1101 King St reet Christiansted, VI 00820 Counsel for Appellant

Sunshine S. Benoit, Esq. Bryant, Barnes, Beckstedt & Blair 1134 King Street, 2 nd Floor

P.O. Box 224589 Christiansted, St. Croix, VI 00820 Counsel for Appellant Hovensa LLC

David J. Cattie, Esq

. [Argued] Charles E. Engeman, Esq. Ogletree, Deakins, Nash, Smoak & Stewart 1336 Beltjen Road, Suite 201 St. Thomas, VI 00802 Counsel for Appellee Triangel Construction and Maintenance, Inc.

_____________

OPINION OF THE COURT

_____________3 RENDELL, Circuit Judge

.

In this appeal, we review the District Court‟s grant of defendants‟ motion to dismiss for lack of subject

- matter jurisdiction based on its determination that plaintiff Gloria Washington was domiciled in the Virgin Islands at the time she filed her complaint against defendants Hovensa, LLC (“Hovensa”) and Triangle Construction and Maintenance,

Inc. (“Triangle”) , notwithstanding her insistence that she was

do miciled in Texas . In reviewing a district court‟s c onclusion regarding where a party is domiciled, our review is for clear

error as to the court‟s factual determination but de novo as to the applicable legal principles and the court‟s conclusions of

law. See McCann v. Newman Irrevocable Trust , 458 F.3d

28 1, 286 (3d Cir. 2006) (“A district court‟s determination regarding domicile or citizenship is a mixe d question of fact

and law . . . . ”); Krasnov v. Dinan , 465 F.2d 1298, 1299

- 1300 (3d Cir. 1972) (“Historical or chronological data which

underline a court‟ s determination of diversity jurisdiction are factual in nature.”) (internal citations omitted).

Although a court‟s inquiry into where a party is domiciled involves a predom inantly factual determination,

s ee McCann , 458 F.3d at 286; Krasnov , 465 F.2d a t 1300,

certain well

- defined legal precepts can, and in this case, do, govern that determination. Here, we take issue primarily with
the District Court‟s application of those legal principles to

reach the conclusion that Washington was domiciled in the

Vi rgin Islands. We also find that the District Court erred in concluding that Washington‟s business, domestic and social

life was centered in St. Croix

. We will accordingly remand

this case

.4 I.

On April 5, 2006, Gloria Washington was injured

while dri ving a rental car on Hovensa‟s property in the Virgin

Islands. She alleged in her complaint that, at the time she was driving, improperly trained Triangle employe es were conducting sandblasts without proper supervision or

barricades and using faulty sandb lasting equipment

. A

sandblast that hit Washington‟s vehicle shattered the dri ver‟s side window, resulting in physical injuries to Washington and damage to her rental car. On July 24, 2006, she filed a complaint in the District Court of the Virgin Island s against Hovensa and Triangle, citi zens of the Virgin Islands, based on diversity of citizenship, claiming that they were responsible

for her physical injuries and the damage to the vehicle

.

At the time Washington filed this complaint, she had

ties to both the Virgin Islands and Texas. She owned a home in Baytown, Texas, but also had an apartment in St. Croix, where she had been living and working for seven months.

She had been employed in Baytown, Texas by Sabine Storage Operations, a Texas corporati on, but went to the V.I. in

December 2005 to work as a pipe inspector for Sabine ; there,

she was assigned to work at the Hovensa re finery in St. Croix. When asked by opposing counsel at her deposition whether she knew, in December 2005, “how long the assi gnment [at the Hovensa refinery] was going to be, or was it indefinite,” she replied: “I didn‟t know. It was indefinite.” In summarizing her testimony on this point, the District Court stated that her “work assignment at the Hovensa refinery was

for an indefinite period of time,” a fact the Court considered “significant.”5 Washington was born in St. Croix, and several of her family members, including her mother, sister, and brothers, resided there in July 2006. Upon returning to the Virgin

Islands in D ecember 2005, Washington rented and furnished an apartment that she was living in at the time of the accident. The District Court found that her apartment “was in close proximity” to her “mother, sisters, brothers, nieces and nephews” and that “she social ized with them on a regular basis.” The record clearly establishes only that she lived in

the same area as her sister and that, at the time of her deposition, she went swimming every couple of weeks with her family. In addition, Washington began a romant ic relationship with a V.I. resident after arriving in St. Croix but before filing her complaint. Between her arrival in St. Croix

and the time of the accident, Washington had not return ed to

Texas.

At the time she filed her complaint , Washington also

ha d several links to Texas: she owned the home in Baytown, Texas, which she was maintaining at the time of the suit and

in which her daughter now lives; she received mail at her Baytown address; her primary care doctor, whom she saw at least yearly, was loc ated in Texas; she maintained her Texas driver‟s license and owned a car in Texas; she paid taxes in Texas; she continued to have a bank account in Texas; she maintained a cell phone with a Texas company; and she visited Texas about three to five times a y ear. Conversely, in

the V.I. , she did not have a primary care physician, a driver‟s license, or a bank account, and she had never purchased a

home or joined any organizations there. I n July 2006, she was receiving a $100 per diem from her empl oyer to cov er her rent and other living expenses during her time in St.

Croix. In an affidavit submitted after defendants filed their6 motion to dismiss, Washington stated that, when she traveled to St. Croix, she intended to return to Texas when her project

was comp lete

, and to continue to live in Texas.

II.

Washington sued Hovensa and Triangle in the District

Court of the Vi rgin Islands on July 24, 2006. At the end of the discovery period that followed

, both parties filed motions, the disposition of which Washin gton challenges on appeal. After failing to reach an agreement with defendants‟ counsel to extend expert discovery deadlines , Washington filed a Motion to Extend the Expert De adlines on the basis that her vocationalist and economist did not yet have acces s to a hearing test that they needed in order to testify. The Magistrate Judge denied her motion, which was filed after the expiration of the deadline set by the District Court‟s Final

Sche duling Order, finding that Washington failed to establish good cau se for modifying the scheduling order under Fed. R. Civ. P. Rule 16(b)(4).

Washington also delayed in getting the Independent Medical Examination (“IME”) at Triangle‟s expense that the parties agreed she would undergo. She canceled her first appointment and refused to have X

- rays taken at the second. In response , Triangle filed an Emergency Motion for Physical

E xamination of Washington at her expense, which the Magistrate Judge granted. Washington then moved for reconsideration, which the Magistrate Ju dge denied.

After these motions were resolved, defendants filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction pursuant to Fed. R. Civ. P. Rule 12(h)(3), on the ground that7 Washington was domiciled in the V.I. when she filed her complaint, n ot in Texas , and, thus, that the District Court lacked jurisdiction over her cause of action. The District Court granted defendants‟ motion , finding it significant that “the center of [Washington‟s] business, domestic, and social

life was in St. Croix

, ” a nd that she was living and working in

the V.I. when the complaint was filed

. Washington v.
Hovensa, LLC , 2010 WL 1734775, at *2 (D. V.I. April 28, 2010). It placed particular emphasis on her expectation that her job in the V.I. would “continue indefinitel y,” relying on certain language in Krasnov v. Dinan , 465 F.2d 1298 (3d Cir. 1972)

. Id. There, despite defendant‟s ties to Connecticut, we concluded that he was domiciled in Pennsylvania because he was to remain there indefinitely

. See Krasnov , 465 F.2d at
1302

- 03. The District Court belie v ed Washington‟s case to be analogous. It acknowledged that Washington owned an unoccupied hou se in Texas and had other ties to that state, but ultimately concluded that “her physical presence in the Virgin Islands, he r intent to work indefinitely in St. Croix, and her

business and social life there” point ed “decisively” towards the Virgin Islands as her domicile

. Washington , 2010 WL 1734775, at *2.

In determining Washington‟s domicile, the District

Court determined that her own affidavit statement declaring her intention to return to and permanently reside in Texas “must be disregarded.” It explained that “ „ [o]ne‟s testimony as to his intention to establish a domicile, while entitled to full and fair consideration, is subject to the infirmity of any

self

- serving declaration, and it cannot prevail to establish domicile when it is contradicted or negatived by an inconsistent course of conduct; otherwise stated, actions speak louder than words.‟” Id. (quoting Korn v. K orn , 3988 F .2d 689, 691 (3d Cir. 1968)). Instead, the Court chose to look only to Washington‟s statements prior to defendants‟ motion to dismiss and her actions at the time of the filing of the complaint.

On appeal, Washington challenges the District Cour t‟s dismissal for lack of subject matter jurisdiction, arguing that, at the time she filed her complaint, she was on temporary assignment in the Virgin Islands for her Texas employer but that she remained a Texas domiciliary who intended to return to, and permanently reside in

, Texas. She also challenges the Magistrate Judge‟s denial of her Motion to Extend Expert

Deadlines and grant of Triangle‟s Emergency Motion for Physical Examin ation at Washington‟s expense.

We have jurisdiction over this appeal und er 28 U.S.C. § 1291, as we are reviewing a fina l order of the district court.

III.

Under § 1332(a)(1), f ederal district courts have original jurisdiction over civil actions where the matter in controversy exceeds the sum or value of $75,000 and is

betwee n “citizens of different States.” 28 U.S.C. § 1332(a)(1). We determine the citizenship of the parties based on the relevant facts at the time the complaint was filed. S. Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Grp.

Ltd. , 181 F.3d 410, 414 n. 2 (3d Cir. 1999) (citing Smith v. Sperling , 354 U.S. 91, 93 n.1 (1957)).

A party‟s citizenship is determined by her domicile, and “„the domicile of an individual is his true, fixed and permanent home and place of habitation. It is the place to9 which, whe never he is absent, he has the intention of returning.‟” McCann , 458 F.3d at 286 (quoting Vlandis v. Kline, 412 U.S. 441, 454 (1973)). Thus, domicile is established by an objective physical presence in the state or territory coupled with a subjective int ention to remain there indefinitely. See Frett

- Smith v. Vanterpool , 511 F.3d 396,

400

- 01 (3d Cir. 2008). When the objective and subjective concur, one‟s domicile is immediately established. Krasnov

, 463 F.3d at 1300.

As we explained in McCann

, a cour t considers several factors in determining an individual‟s domicile, including “„declarations, exercise of political rights, payment of personal taxes, house of residence, and place of business.‟”

McCann , 458 F.3d at 286 (quoting Krasnov, 465 F.2d at 1301 (internal quotation omitted)). Other factors to be weighed may include “location of brokerage and bank accounts, location of spouse and family, membership in unions and other organizations, and driver ‟ s license and vehicle registration.” Id. (citing 13B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 3612 (3d ed. 2005)). More generally, the court must locate “the center of one‟s business, domestic, social and civi c life.”

Frett

- Smith , 511 F.3d at 401.

IV.

We begin our review of the District Court‟s domicile determination by noting a legal precept that may not have

been stressed before the District Court but that we nonetheless consider important. As we have explained, an individual‟s domicile changes instantl y if he “takes up residence at the new domicile” and “intend[s] to remain10 there.” Krasnov , 465 F.2d at 1300. But “„[a] domicile once acquired is presumed to continue until it i s shown to have been changed.‟” Korn

, 398 F.2d at 691 n.4 (quoting Mitchell

v . United States

, 88 U.S. 350, 353 (1874)). “This principle,”

we said in McCann

, “ gives rise to a presumption favoring an
established domicile over a new one.” McCann , 458 F.3d at

286

- 87 (citing Acridge v. Evangelical Lutheran Good

Samaritan Soc.

, 334 F.3 d 444, 448 (5th Cir. 2003) ) ; see also
Gutierrez v. Fox

, 141 F.3d 425, 427 (2d Cir. 1998); State Farm Mut. Auto. Ins. Co. v. Dyer

, 19 F.3d 514, 519 (10th Cir. 1994); Holmes v. Sopuch

, 639 F.2d 431, 434 (8th Cir. 1981);

Hawes v. Club Ecuestre El Comandante

, 598 F.2d 698, 701 (1st Cir. 1979); Stine v. Moore

, 213 F.2d 446, 447 (5th Cir. 1954); 13B Wright et al., supra, § 3612

.

This presumption does not shift the burden of proof to establish diversity of citizenship away from the proponent of federal jurisdic tion; the party asserting diversity jurisdiction

– here, Washington

– retains the burden of proving that diversity of citizenship exists by a preponderance of the

evidence. See Krasnov , 465 F.2d at 1301. Nevertheless , the presumption does demand more fro m the party seeking to

establish a new domicile

– here, Hovensa and Triangle

– than if that party were seeking to establish a continuing domicile.

See 13B Wright et al., supra, § 3612 (“The effect of this presumption is to put a heavier burden on a party who is trying to show a change of domicile than is placed on one who is trying to show the retention of an existing or former one.”). 1 This “heavier burden” involves “shifting to . . . [the]

1 See als o Fed. R. Evid. Rule 301 (“ In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules, a presumption imposes on the party against11 party [that bears it] the burden of production regarding the

cha nge of domicile, not raising the standard of proof.”

McCann , 458 F.2d 281 at 287 n.3. 2 When the party “claiming a new domicile is the opponent of federal jurisdiction,” as here, it “bears the initial burden of producing sufficient evidence to rebut the p resumption in favor of the established
domicile.” Id. at 288. If the opposing party

– in this case, Washington

– is successful, the presumption is defeated , the case proceeds, and “the party asserting jurisdiction bears the burden of proving diversity of citizenship.” Id.

Here, while it is conceivable that defendants presented enough evidence to meet their burden of production , it is not

clear fr om the District Court‟s opinion t h at it even considered

whom it is directed the burden of going forward with evidence to rebut or meet the p resumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast.”).

2 The burden of proof in a civil case has two distinct

compon ents

– the burden of going forward with proof, which is referred to as the “burden of production,” and the burden of persuading the trier of fact, known as the “burden of persuasion.” McCann , 458 F.3d at 287. “ The party bearing the burden of persuasion must lose if the evidence is evenly balanced. The burden of production, in contrast, does not concern the quantum of proof required for a party to ultimately prevail, but instead determines which party must first present evidence sufficient to raise a giv en issue as pertinent.” United States v. Harstock , 347 F.3d 1, 7 (1st Cir. 2003).12 the presumption as it weighed the evidence

. Where s o many facts that our caselaw regards as important bolster the baseline presumption that Washington retained her

established residence in Texas

– from Washington‟s ho me ownership, driver‟s license, vehicle registration, bank account, cell phone, and primar y care doctor in Texas to her employer‟s per diem payments while she was in the V.I.

– defendants have a substantial initial hurdle to overcome in introducing evidence that Washington was domiciled in the

V.I.

. 3 We are not convinced that, in light of the presumption

3 Numerous cases focus on these very indicia as being important. See, e.g.

, Frett

- Smith , 511 F.3d at 401 (in ruling that plaintiff was domiciled in the V.I., emphasizing that she
filed tax returns in the V.I. and had a U.S.V.I. driver‟s license); Muscarello v. Ogle County Bd. of Comm’rs , 610 F.3d 416, 424 (7th Cir. 2010) (in finding that plaintiff was domiciled in Arizona, pointing to her registration to vote in Arizona, A rizona driver‟s license, and listing of her Arizona address with Medicare and Social Security and on various property tax bills); Garcia Perez v. Santaella , 364 F.3d 348,

352

- 53 (1st Cir. 2004) (finding that plaintiffs were domiciled in Florida, which beca me their “personal and financial base,” where they acquired Florida drivers‟ licenses, registered to vote there, and opened a Miami bank account that they used as their primary account); Schiavone v. Donovan , 2009 WL 2957315, at *3 (D.N.J. Sept. 15, 2009) (finding that the preponderance of evidence supports a Florida domicile where, among other facts pointing toward Florida, defendant was registered to vote in Florida, had a Florida driver‟s license, owned property there, had a bank account and safety depos it box there, received a tax exemption there, and registered a vehicle and maintained auto insurance there);13 of continued domicile, the District Court gave the facts supporting the presumption of Washington‟s established domicile in Texas all the weight they deserved

. While the District Court included these facts in its factual recitation, they do no t appear to have been given any weight in its analysis

.

The second legal principle we wish to stress relates to the consideration to be given to a n admittedly self

- serving

affidavit. Washington submitted an affidavit after defendants

filed their motio n to dismiss

, stating that, at the time she filed her complaint, she intended to return to Texas and to continue to live in Texas once her project in the V.I. was completed. Citing Korn , the District Court determined that the affidavit “must be disregarde d.” Washington , 2010 WL 1734775, at

*2. It provided no further explanation beyond this citation as

Doe v. Schwerzler , 2008 WL 1781986, at *3 (D.N.J. Apr. 17, 2008) (finding that plaintiff was domiciled in Kentucky based on “proof . . . dispositiv e on the issue of her citizenship”: that she had registered to vote in Kentucky, had a Kentucky driver‟s license, leased property in Kentucky, and paid utilities and income taxes there); Murphy v. Miller , 2005 WL 318749, at *1 (E.D. Pa. 2005) (concluding, based on “the factors that have been analyzed time and time again in this district,”

– including defendant‟s opening a bank account in California, buying and registering a car there, and applying
for a California driver‟s license

– that he was domiciled i n California); Messick v. S. Pa. Bus Co. , 59 F. Supp. 799 (D.C. Pa. 1945) (in finding that plaintiff was domiciled in Delaware, attaching significance to his home ownership, bank account, and payment of taxes in Delaware).14 to why it chose to disregard Washington‟s testimony or how

the situation in Korn maps onto the facts at issue here.

In Korn , we stated that “[o]ne's t estimony as to his intention to establish a domicile, while entitled to full and fair consideration, is subject to the infirmity of any self

- serving declaration, and it cannot prevail to establish domicile when it

is contradicted or negatived by an i nconsi stent course of

conduct .” 398 F.2d at 691 (emphasis added)

. In Korn , a divorce action, the plaintiff sought to e stablish domicile in St.

Thomas. He declared in an affidavit that he traveled t o St.

Thomas with the intent to make it his permanent residenc e and domicile. Yet , as we outlined in detail, his “entire course

of conduct” contradicted his declaration of intent

. 4 We thus

4 Plaintiff was a doctor who ha d practiced osteopathic medicine in Philadelphia, Pennsylvania for thirty

- one years before going to St. Thomas. He had been convicted in Philadelphia of performing an illegal abortion and was in the midst of divorce proceedings in both Philadelphia and Ne w Jersey when he left suddenly for St. Thomas, discontinued the pending actions, and commenced a new divorce suit. Despite his testimony that he was coming to the V.I. to “make a new life” and start a new practice there, he made no attempt to

ascertain th e requirements for medical licensing until five months after arriving there. Moreover, at the time he filed the divorce action, he had made no attempt to establish a permanent home in the V.I., had traveled back and forth to the U.S. several times, had ch ecked in and out of several hotels in the V.I., continued to list his address on official documents as Philadelphia, PA, and continued to maintain his health insurance in Philadelphia. Korn , 398 F.3d at 693.15 discounted his self

- serving testimony that he planned to stay

in the V.I.

, and drew the “inescapable conclusion” that he was

fo rum shopping in his quest for a divorce. Id. at 693.

However, this is not a case like Korn where “the surrounding facts and circumstances clearly indicate” that plaintiff‟s testimony is fabricated. 398 F.2d at 691. To the contrary, Washington‟s state ment that she intended to return to and reside in Texas is buttressed, not contradicted, by her course of conduct at the time she filed her complaint. Accordingly, Korn is not controlling, and Washington‟s affidavit should not have been disregarded.

We think it is important that a court be guided b y these key legal principles in determining domicile , and we will remand for it to do so and render its ruling giving them due

consideration.

V.

The District Court also made an error of fact. In its

brief consideration of the facts pointing toward the V.I., and

those pointi ng toward Texas, the District Court twice mentioned that Washington‟s business, domestic and social life was centered in St. Croix. Yet, little evidence in the record supports this concl usion as to Washington‟s life at the time she filed the complaint. Washington testified to living in the same neighborhood as her sister and to starting a romantic relationship with a V.I. resident prior to filing her complaint,

but the record is otherwis e lacking in evidence that she socialized often with her family or with other V.I. residents or that her “business life” in the V.I. went beyond her temporary employment assignment there.16 On the other hand, the record does contain indicia that her stay i n the V.I. was transient and not permanent when she filed her complaint. As mentioned above, Washington set up none of the trappings of a “true, fixed and permanent home,”

McCann , 458 F.3d at 286 , in the V.I., and her employer was paying her a $100 per di em for living expenses at the time she filed her complaint. The District Court does not mention these facts in analyzing the issue.

This factual error does not render the District Court‟s entire decision clearly erroneous, but it should be corrected

on remand, as it is not supported by evidence in the record.

VI.

Relatedly , we note that, while it is generally useful to analogize fact patterns of other cases and base rulings on outcomes in similar cases, it may not be quite so useful in this
type of case , where the facts presented can vary so slightly, and yet the sligh tes t variation leads to a different result. 5

Here, the District Court concluded that Wash ington‟s

statement that the le ngth of her job was “indefinite ” when she

went to the V.I. m ade her case analogous to the situation in

Krasnov

. In Krasnov , we ruled that defendant, a member of a

semi

- monastic teaching order headquartered in Connecticut

5 Cf. Gallagher v. Philadelphia Transp. Co. , 185 F.2d 543, 546 (3d Cir. 1951) (conceding that “there is a good deal of rather ambiguous talk in the cases, some of which might arguably be taken to support [the district court‟s] . . . position,” but nonetheless reversing the district cour t‟s domicile determination).17 who was working in Pennsylvania when he filed his complaint, was domiciled in Pennsylvania. D efendant was regularly transferred to different locations for teaching assignments. He had very few possessions and owned no property other than a foot locker which accompanied him to Pennsylvania. 465 F.3d at 1301. In determining that he was a Pennsylv ania domiciliary, we considered these facts as well as his testimony that he intended to remain in Pennsylvania as long as he was assigned to teach there and that the term of his teaching assignment was indefinite. Id. at 1301

- 02. However, there was no d iscussion in Krasnov of any other, let alone established, residence to which the defendant said he intended to return. Unlike Washington, he went from assignment to assignment in a different location each time.

This variation in the facts makes a differe nce; here, we think, it is an important one. Washington‟s testimony as to her lack of knowledge of the length of her assignment in the V.I. is not analogous to the situation in Krasnov

.

Accordingly, we will vacate and remand for further proceedings cons istent with this opinion.

VII.

Washington also challenges the Magistrate Judge‟s orders denying her motion for extension of expert deadlines and granting defendants‟ motion to compel a medical

examination. 6 We find that, because Washington failed to

6 We review a district court‟s discovery order for abuse of discretion, and we will not disturb such an order absent a showing of actual or substantial prejudice. Anderson v. Wachovia Mortg. Corp. , 621 F.2d 261, 281 (3d Cir. 2010).18 fo llow the proper procedure to object to the Magistrate Judge‟s order denying extension of expert deadlines, she has waived her right to challenge this order on appeal. See United Steelworkers of Am. v. New Jersey Zinc Co. , 828 F.2d 1001, 1006 (3d Cir. 1987 ). Moreover, even if the issue were not waived, we discern no abuse of discretion in the Magistrate Judge‟s denial of Washington‟s request based on a finding that Washington failed to establish good cause for modifying the scheduling order. The Magistrat e Judge also did not abuse his discretion in granting appellees‟ motion to compel a medical examination and in requiring Washington
to pay the expenses of the examination

. Accordingly, we affirm the Magistrate Judge‟s rulings on these motions.