Of the District of Rhode Island, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 07-1447 

RYAN PADILLA-MANGUAL,

Plaintiff, Appellant,

v.

PAVÍA HOSPITAL, ET AL.

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Torruella and Howard, Circuit Judges,

and Smith, District Judge. *

Antonio Bauzá-Torres and Rubén Morales, for appellant.

Mirta Rodríguez-Mora, with whom Látimer, Biaggi, Rachid &

Godreau, were on brief for appellee Pavía Hospital, and Nuyen

Marrero-Bonilla, with whom Montijo & Montijo Law Offices, were on

brief for appellees Dr. Miguel De La Cruz and his conjugal

partnership.

February 14, 2008
 The complaint originally named Nicole Freire (or, Freyre), 1

Padilla’s then-fiancée, as an additional plaintiff. However, she

subsequently was voluntarily dismissed from the case. 

 Although Padilla’s complaint actually alleged that he was a 2

“resident” of Florida, rather than a “citizen” or “domiciliary” of

Florida, the district court’s analysis of domicile moots any

concern as to whether Padilla’s allegations, if defective, should

preclude a finding of diversity jurisdiction. See Cantellops v.

Álvaro-Chapel, 234 F.3d 741, 742-743 (1st Cir. 2000) (district

court’s analysis of domicile reviewed for clear error even where

complaint specifically alleged residency instead of domicile). 

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SMITH, District Judge. In this case, a challenge to the

diversity jurisdiction claimed by a plaintiff requires us to

examine the presumption of domicile and what it takes to overcome

it where the plaintiff forges none of the typical ties to his new

home. Ultimately, we conclude that the task is one better left to

the district court, with the benefit of an evidentiary hearing. 

Plaintiff-appellant, Ryan Padilla-Mangual (“Padilla”),

brought an action in the United States District Court for the

District of Puerto Rico against defendant-appellee Pavía Hospital,

and defendants-appellees Dr. Miguel De La Cruz Castellanos and his

conjugal partnership (collectively, “Dr. De La Cruz”), for damages

stemming from allegedly negligent medical treatment. Padilla’s 1

complaint, which was premised on Puerto Rico’s general tort

statute, P.R. Laws Ann. tit. 31, § 5141 (2004), alleged federal

diversity jurisdiction under 28 U.S.C. § 1332. The complaint

alleged that Padilla was a resident of the State of Florida.2

On July 17, 2006, Dr. De La Cruz moved to dismiss for
 Dr. De La Cruz’s motion also requested that the district 3

court abstain from deciding the action based on the abstention

doctrine set forth in Colorado River Water Conservation Dist. v.

United States, 424 U.S. 800 (1976). The district court did not

discuss the issue of abstention in light of its decision to dismiss

the complaint for lack of diversity jurisdiction. 

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lack of subject matter jurisdiction on the grounds that diversity

of citizenship was lacking. Dr. De La Cruz claimed that as of 3

January 30, 2006, the date that Padilla filed his complaint,

Padilla actually was a domiciliary of Puerto Rico, not Florida. On

October 3, 2006, Pavía Hospital moved for summary judgment on

Padilla’s claims, also arguing that the district court lacked

diversity jurisdiction. The district court granted both motions in

a single order on February 1, 2007, without holding an evidentiary

hearing. Padilla timely filed this appeal. While the district

court’s analysis ultimately may prove to be correct, because we

find that the record has not been adequately developed, we reverse

and remand for an evidentiary hearing on the question of diversity

of citizenship.

Federal jurisdiction based on diversity of citizenship

requires that the matter in controversy be between citizens of

different states. 28 U.S.C. § 1332(a)(1) (2006). For purposes of

diversity, a person is a citizen of the state in which he is

domiciled. Lundquist v. Precision Valley Aviation, Inc., 946 F.2d

8, 10 (1st Cir. 1991); Rodríguez-Díaz v. Sierra-Martínez, 853 F.2d

1027, 1029 (1st Cir. 1988); Valedón Martínez v. Hospital
 The complaint filed in Puerto Rico state court on January 4

26, 2006, was actually an amended complaint. The original

complaint, which also alleged that Padilla was a resident of Puerto

Rico, was filed on August 22, 2005. 

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Presbiteriano de la Comunidad, Inc., 806 F.2d 1128, 1132 (1st Cir.

1986). “A person’s domicile ‘is the place where he has his true,

fixed home and principal establishment, and to which, whenever he

is absent, he has the intention of returning.’” Rodríguez-Díaz,

853 F.2d at 1029 (quoting Charles Allen Wright, Arthur R. Miller,

& Edward H. Cooper, Federal Practice & Procedure § 3612 (2d ed.

1984)). Domicile is determined as of the time the suit is filed.

Lundquist, 946 F.2d at 10; Valedón Martínez, 806 F.2d at 1132;

Hawes v. Club Ecuestre El Comandante, 598 F.2d 698, 701 (1st Cir.

1979).

In contesting Padilla’s assertion of diversity

jurisdiction, the appellees point out that only four days before

filing his action in the district court, Padilla filed a complaint

in Puerto Rico state court, essentially making the same allegations

as in his federal complaint, but alleging him to be a resident of

Puerto Rico. Once challenged, “the party invoking subject matter 4

jurisdiction [here Padilla] has the burden of proving by a

preponderance of the evidence the facts supporting jurisdiction.”

Bank One, Texas, N.A. v. Montle, 964 F.2d 48, 50 (1st Cir. 1992)

(citation omitted); see also Lundquist, 946 F.2d at 10 (plaintiff

must support allegation of jurisdiction by “competent proof”);
 Padilla’s representation that he relocated to Florida on 5

December 31, 2004 appears to be contradicted by his own appellate

brief, in which he asserts that he was flown (apparently from

Puerto Rico) to the Mayo Clinic in Jacksonville, Florida, on or

about January 18, 2005. 

-5-

O’Toole v. Arlington Trust Co., 681 F.2d 94, 98 (1st Cir. 1982);

Hawes, 598 F.2d at 702; Lugo-Viña v. Pueblo Int’l, Inc., 574 F.2d

41, 44 (1st Cir. 1978). Padilla contended that the allegations of

residency contained in his Puerto Rico pleadings were “clerical

errors” and that he had, by December 31, 2004, permanently

relocated from Puerto Rico to Florida.5

There is, ordinarily, a presumption of continuing

domicile, Hawes, 598 F.2d at 701; see also Mitchell v. United

States, 88 U.S. 350, 353 (1874) (“domicile once acquired is

presumed to continue until it is shown to have been changed”).

Because Padilla was raised in Puerto Rico and lived there until his

apparent relocation to Florida, it is presumed that he was a

domiciliary of Puerto Rico. To sustain his burden, Padilla was

required to show two things in order to establish a change in his

domicile from Puerto Rico to Florida: (1) presence in Florida, and

(2) an intent to remain there. Bank One, 964 F.2d at 50; Valedón

Martínez, 806 F.2d at 1132; Hawes, 598 F.2d at 701. We have stated

previously that the factors relevant to determining a party’s

intent include:

the place where civil and political rights are

exercised, taxes paid, real and personal

property (such as furniture and automobiles)
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located, driver’s and other licenses obtained,

bank accounts maintained, location of club and

church membership and places of business or

employment. 

Bank One, 964 F.2d at 50 (citation omitted). While no single

factor is controlling, some courts have presumed domicile in a

state is established where a party is registered to vote. Id.

This Court has not recognized such a presumption, but we have said

that the place a person is registered to vote is a “weighty” factor

in determining domicile. Lundquist, 946 F.2d at 12.

The district court’s conclusion that Padilla failed to

meet his burden of proving that he changed his domicile to Florida

at the time he filed his federal complaint is a “mixed question of

law and fact and as such may not be set aside unless clearly

erroneous.” Bank One, 964 F.2d at 51; Lundquist, 946 F.2d at 11;

Valedón Martínez, 806 F.2d at 1132; O’Toole, 681 F.2d at 98; Hawes,

598 F.2d at 702. “A finding is ‘clearly erroneous’ when, although

there is evidence to support it, the reviewing court is left with

the definite and firm conviction that a mistake has been

committed.” Anderson v. Bessemer City, 470 U.S. 564, 573 (1985)

(citation omitted). Though this presents a high hurdle for

Padilla, we believe it has been cleared here - if only just - and

we therefore cannot sustain, on the present record, the district

court’s finding of a lack of diversity jurisdiction. See Fredyma

v. AT & T Network Sys., Inc., 935 F.2d 368, 370 (1st Cir. 1991)
 As the district court noted, only one of the ledgers records 6

Padilla as a co-tenant with Nicole Freire, Padilla’s then-fiancée.

Two others show only Freire as the tenant, and the fourth shows

Padilla’s mother as the tenant. The ledger recording Padilla as a

cotenant overlaps with the date that Padilla filed his federal

complaint, i.e. Padilla apparently was the cotenant of a Florida

residence as of the day that he filed his federal complaint on

January 30, 2006. 

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(reversing district court judgment for error in procedure, but

expressing no opinion on “ultimate viability” of complaint).

 The record before us reveals that Padilla offered several

pieces of evidence to show that he had changed his domicile from

Puerto Rico to Florida prior to filing his federal lawsuit: (1) two

declarations, one his and the other his mother’s, made under

penalty of perjury, that he is a resident of Florida and has no

intention of returning to Puerto Rico; (2) copies of four ledgers

detailing payments and charges from four different addresses in

Florida where Padilla claims to have resided since January 2005;6

and (3) a copy of a driver’s license issued to Padilla on January

20, 2005, by the state of Florida. In his declaration, Padilla

stated that he moved to Florida on December 31, 2004 and has never

returned to Puerto Rico. He also declared that he intends to

continue living in Florida, has no intention of ever returning to

Puerto Rico, and that all of his personal contacts are in Florida,

with the exception of his mother in Puerto Rico who provides him

with financial support. Padilla’s mother’s declaration echoed
 While Padilla argued in opposition to the motion to dismiss 7

and motion for summary judgment that his Puerto Rico pleadings

contained erroneous allegations of residency, he submitted no

actual evidence to support this specific claim until he submitted

the declaration of his former counsel with his surreply. This

relates to an additional concern that we would prefer to see

alleviated before terminating Padilla’s right to seek relief in a

federal forum. The district court apparently granted Padilla an

extension of time to February 6, 2007 to file a surreply.

Nonetheless, the district court entered its judgment dismissing

Padilla’s complaint one day sooner, on February 5. Padilla’s

surreply, filed on February 6, included the declaration from his

former counsel, in which counsel stated that he inadvertently

copied Padilla’s mother’s address into the Puerto Rico pleadings,

as well as additional documentation purporting to evidence

Padilla’s Florida domiciliary. That same day, Padilla also filed

a motion for reconsideration of the district court’s decision,

which the district court denied on February 7. In denying the

motion for reconsideration, the district court stated that it

reviewed Padilla’s surreply and found “no reason to change its

previous ruling.” We are troubled by this apparent sub silentio

reversal of the district court’s decision to grant Padilla the

opportunity to file a surreply. It is not inconceivable that the

previous day’s dismissal of Padilla’s complaint colored the

district court’s review of his surreply. We think these events

support our view that the best approach is for the district court

to take a fresh look at all the evidence submitted and conduct an

evidentiary hearing to assess the credibility of the declarants.

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Padilla’s claims and clarified that she pays all of Padilla’s

expenses since he is unable to work or study. 

7

Based on these submissions, as well as the Puerto Rico

state court pleadings alleging that Padilla was a domiciliary of

Puerto Rico, the district court found that, “[g]iven the totality

of the circumstances, the Court simply cannot find that Padilla has

established his domicile in Florida for diversity purposes.” The

district court reasoned that, ultimately, “Padilla has not shown .

. . that he has taken any affirmative steps to establish a domicile
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in Florida.” Specifically, the district court focused on Padilla’s

apparent failure to cultivate the sort of ties traditionally viewed

as manifesting an expression of domicile:

Padilla does not work nor has he indicated

that he is looking for work in Florida. He

does not go to school. He does not own or

rent any real property in Florida. He does

not belong to any clubs or groups, nor does he

attend a church. He does not have any bank

accounts. He has not registered or exercised

the right to vote. Other than his driver’s

license and a stated desire to stay there,

Padilla doesn’t seem to have established any

real presence in Florida.

The district court also believed it to be contradictory

that Padilla stated his physical condition prevented him from

working or attending school, and yet Padilla also professed to live

alone and far from family, to care for himself, and to drive a car.

In other words, the district court found that Padilla’s

declaration was not credible because he largely had not taken the

affirmative steps described in Bank One, e.g. opening a bank

account or obtaining employment. However, nothing we have said in

our prior decisions implies that the typical indicia of domicile

are required in order to change one’s domicile; rather, we have

described these as examples of indicia of intent. 

We recognize that the mode of proving diversity is

normally left to the district court, but its discretion is not

unfettered. Bank One, 964 F.2d at 51; O’Toole, 681 F.2d at 98.

While the district court may rely on documentary evidence to
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establish whether jurisdiction attaches, and while the same clearly

erroneous standard applies to findings based thereon, the

presumption that the court reached a correct result is somewhat

lessened relative to findings based on oral testimony. Bose Corp.

v. Consumers Union of United States, Inc., 466 U.S. 485, 500

(1984). In Prakash v. American University, 727 F.2d 1174 (D.C.

Cir. 1984), the District of Columbia Circuit, remanding for further

proceedings on the question of diversity, stated:

[i]n many instances, and perhaps in most, a

party’s intent will appear, at least in part,

from facts established by documents. When,

however, as here, a party expressly declares

his intent, and the opposing written

submissions do not demonstrate the falsity of

the declaration with reasonable certainty, the

issue necessarily becomes one of the

declarant’s credibility. In that event, the

court cannot rest its decision simply on the

paper record, but must hold a hearing in order

to adequately assess credibility. Only in that

way is a sound decision on intent possible.

Id. at 1180 (citations omitted); see also Rubin v. Buckman, 727

F.2d 71, 73 (3d Cir. 1984) (remanding for further proceedings on

whether diversity might exist); Williamson v. Tucker, 645 F.2d 404,

414 (5th Cir. 1981) (where subject matter jurisdiction is attacked

“the district court must give the plaintiff an opportunity for

discovery and for a hearing that is appropriate to the nature of

the motion to dismiss”); Shahmoon Indus., Inc. v. Imperato, 338

F.2d 449, 451-52 (3d Cir. 1964) (remanding case for further inquiry

into the jurisdictional facts where the court had “serious doubts”
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as to the district court’s jurisdiction based on the factual record

and where the factual record only raised doubts as to the accuracy

of one of the parties’ affidavits). It is certainly possible that

one might change his residence with no intent of returning, but not

make those connections described in Bank One. Any number of

explanations are possible -- physical or mental incapacity,

religious objections, to name a few. The point is that where a

party has declared his intent to change and remain in his new

domicile, and the opposing written submissions do not demonstrate

the falsity of the declaration with reasonable certainty, the

absence of typical indicia of domicile is not determinative. More

is required of the district court before it concludes that a

plaintiff has not met his burden and overcome the presumption. We

agree with our sister circuits that in these circumstances an

evidentiary hearing is appropriate.

Thus, while we note that the district court’s decision is

by no means wholly unsupported by the record, we are persuaded, for

the reasons stated above, that Padilla’s complaint should not be

dismissed in the absence of an evidentiary hearing that will allow

the district court to assess fully Padilla’s credibility and

resolve certain unanswered questions implicated by the parties’

briefing.

We stress that we are not predetermining the ultimate

findings of the district court. In conducting a jurisdictional
 As a final note, we emphasize that, on remand, Padilla must 8

establish by preponderance of the evidence that as of January 30,

2006, the date he filed his complaint, he was domiciled in Florida.

García Pérez v. Santaella, 364 F.3d 348, 351-52 (1st Cir. 2004). 

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inquiry, the court enjoys broad authority to order discovery,

consider extrinsic evidence, hold an evidentiary hearing, and hear

testimony in order to determine its own jurisdiction. Valentín v.

Hospital Bella Vista, 254 F.3d 358, 363 (1st Cir. 2001). We do not

pretend to know what the district court may determine as a result

of its inquiry; we request only that the inquiry be sufficiently

thorough to assure that all parties receive a full and fair

opportunity to be heard.8

Reversed and Remanded.