Concept
Citizenship of Individuals
Diversity jurisdiction
Citizenship of Individuals
Section 1332 speaks of citizens of different States, but neither Article III nor the statute says how to decide which State a human being is a citizen of. A person may have a house in one State, a job in another, and a driver's license from a third, and the diversity question cannot be answered until one of them is chosen. Because the text is silent, courts built a test, and the test is domicile.1 This section teaches that test, then the statute that fixes the citizenship of a person who sues or is sued on behalf of someone else, and then applies the test to a fact pattern in which the arguments pull in both directions.
Domicile: Presence and Intent
For diversity purposes, a natural person's state citizenship is the State of that person's domicile, and residence alone does not suffice.2 Domicile is the place of a person's true, fixed, and permanent home and principal establishment, the place to which the person intends to return whenever absent.3 The distinction matters because residence is easy to multiply. A person can keep a house in Florida and a house in New York, and a rule that counted every residence would give that person several citizenships and make the diversity count impossible to run. Domicile picks out the one State where the person is, in the eyes of the law, a local, which is the State whose courts the diversity statute worries would favor that person over an outsider.
The test has two elements, and neither is enough alone. The person must be physically present in the State, and the person must intend to remain there indefinitely.4 The Supreme Court described the same pairing in Mississippi Band of Choctaw Indians v. Holyfield: for adults, domicile is physical presence in a place combined with a state of mind about remaining there.5 The two-element structure does real work. Requiring presence keeps a person from claiming a State they have only planned to move to, and requiring intent keeps a temporary stay, such as a term at school or a vacation, from changing citizenship.
The intent required is modest in one respect. The person need not plan to stay forever. It is enough to intend to make the State home with no present intention of going elsewhere.6 Courts have accordingly found that people living in a State involuntarily or for a limited time, including students, prisoners, and members of the armed services, can establish domicile there if they intend to keep their principal establishment in the State for the time being.7 Because intent is a state of mind, a court infers it from conduct. The factfinder looks to the party's declarations, exercise of political rights, payment of personal taxes, house of residence, and place of business.8
Three consequences follow from treating domicile as a single, continuing status. A person has only one domicile at a time, even with many residences.9 Once established, a domicile continues until a new one is acquired, and a new one requires residence and the requisite intent to coincide.10 And a change can happen at once, since a United States citizen who takes up residence in a new State intending to remain there acquires the new domicile at that moment.11 The motive for moving does not matter if the move is genuine, so a person who relocates in order to gain access to federal court has still changed domicile, but a party who plans to move back once the suit ends has not made a bona fide change.12
The cases show which fact moves the answer. In Mas v. Perry, a Mississippi native named Judy Mas spent about three years in Louisiana as a graduate assistant, married a French citizen, and sued their Louisiana landlord. The Fifth Circuit held she remained a Mississippi domiciliary, because she and her husband were in Louisiana only as students and lacked the intention to remain there.13 Marriage to an alien did not change her domicile either.14 Presence was constant in that case, so intent decided it. In Gordon v. Steele, by contrast, a young woman who had lived with her parents in Pennsylvania reached eighteen after the state legislature lowered the age of majority, and the court treated her as free to establish her own domicile, which it found to be Idaho.15 The difference lies in what the student intended. A student who plans to return home keeps the home domicile, while a student who moves intending to stay can acquire a new one.
One further point concerns who can be a state citizen at all. Domicile is necessary but not sufficient, because a natural person must also be a citizen of the United States to be a citizen of a State within the meaning of the diversity statute.16 The earlier discussion of stateless and nonresident parties shows what happens to an American domiciled abroad, who has the citizenship but no State.
Applying Domicile to Two Homes
The test is hardest when someone has two real homes. Suppose Ma and Pa, lifelong New Yorkers, buy a condominium in Delray Beach, Florida, to be near their friends. A month later Ma, who dislikes the heat and the golf, announces that she wants to go home to New York. Pa agrees, rents the condo out on a five-year lease, sublets a New York apartment, buys new furniture for it, and returns to his old job. Ma volunteers at a local hospital. They keep a Florida savings account, safe deposit box, utilities, driver licenses, and medical plan, and they visit the condo for a week or two each spring and fall. They then sue a New York driver in federal court over a collision on the Long Island Expressway that destroyed their $80,000 car.19
The case turns on one question, because the defendant is a New Yorker and diversity exists only if Ma and Pa are Floridians. Presence points both ways, since both States hold real contacts. The Florida side includes the condo, the account, the licenses, and the doctors, while the New York side includes the apartment, the job, the volunteer work, the checking account, the utilities, the car insurance, and the fact that they live in New York most of the year.20 So presence cannot resolve the case, and intent has to.
The Florida argument rests on Pa's own explanation for keeping the condo, which was that they would still have it when he finally retired. That suggests an intention to return to Florida eventually.21 The New York argument is stronger. A plan to move somewhere in the future is not an intention to make it home now, and the test asks where a person's present home is. Ma has said plainly that she wants to be in New York, Pa has no wish to live apart from her, and the couple lives, works, and pays bills there, so their current principal establishment is New York.22 The Florida condo is a residence and a future possibility. On that reading, Ma and Pa are New Yorkers suing a New Yorker, and diversity fails even though the $80,000 amount is satisfied. A model answer can note the contrary argument, but it should commit to the conclusion the facts better support and say why.
Small changes in the facts show where the answer would move. If the couple had sold the New York apartment, moved their belongings into the condo, and kept it as their only home, presence and intent would both point to Florida. If instead they had never bought the condo and merely vacationed in Florida, the case would resemble a weekend-home owner who is a citizen only of the State of the main home.23
Legal Representatives and Minors
Some litigants sue or are sued through someone else, such as the executor of an estate or the guardian of a child. If the representative's own citizenship counted, the choice of representative could create or destroy diversity. A family could pick an out-of-state executor to get into federal court, or a lawyer could pick an in-state guardian to keep a case out. Before Congress acted, lower courts policed this problem by asking whether the appointment was made to manufacture diversity, and the circuits varied widely on when to apply that inquiry.25 A 1988 amendment to the statute replaced the motive inquiry with a fixed rule, now in § 1332(c)(2). The legal representative of a decedent's estate is deemed a citizen only of the same State as the decedent, and the legal representative of an infant or incompetent is deemed a citizen only of the same State as the infant or incompetent.26 The rule removes questions of motive and is easy to administer.
Suppose a Texan dies, and the executor of the estate, who lives in Oregon, sues a Texas company for wrongful death. The executor takes the decedent's Texas citizenship, so the suit is Texas against Texas and diversity fails. If the executor lived in Texas and the defendant were an Oregon company, the executor would likewise be treated as a Texan and diversity would exist, even though the executor's own residence had nothing to do with it. Only the person represented matters, and the representative's home is ignored in both directions.
A minor's citizenship follows the same logic. Because most minors cannot form the intent needed to establish a domicile, a minor's domicile is generally that of the parents.27 Courts look to where the custodial parent or parents reside, unless the minor has been emancipated.28 An incompetent adult is harder, and courts have disagreed. Some courts look to where the person has long lived, others allow another person with legal authority to fix domicile for the incompetent's benefit, and still others hold that an adjudged incompetent can change domicile only on regaining enough capacity to choose.29 On an exam, state the statutory rule for representatives and flag the disagreement on how an incompetent's own domicile is determined.
Domicile: Presence and Intent
A person's state citizenship for diversity purposes is the State of that person's domicile. Residence alone does not decide it.31 Domicile means the place of a person's true, fixed, and permanent home and principal establishment, the place to which the person intends to return whenever absent.32 The statute needs this narrower idea because residence is easy to multiply. Someone with a house in Florida and an apartment in New York has two residences, and a test that counted both would give one litigant two citizenships and make the diversity count impossible to run. Domicile selects the one State where the person is, in the law's eyes, a local rather than an outsider.
Domicile has two elements, and each one fills a gap the other leaves. The person must be physically present in the State, and the person must intend to remain there indefinitely.33 For adults, the Supreme Court has described domicile as physical presence in a place together with a state of mind about staying there.34 Presence alone would let a short visit or a stay at school change citizenship, because anyone who happened to be in a State would count as its citizen. Intent alone would let a person claim a State they had only dreamed of moving to. Requiring both ties citizenship to a real home, and neither element is enough without the other.35
The intent required is less demanding than it first sounds. The person need not plan to stay permanently. It is enough to intend to make the State home, with no present intention of going elsewhere.36 Because a state of mind cannot be observed directly, the factfinder infers it from conduct, looking to the person's declarations, exercise of political rights, payment of personal taxes, house of residence, and place of business.37 Suppose a family sells its old house, moves to a new State, enrolls the children in local schools, and registers to vote there. Each step points to intent, so the new State is the domicile. Now suppose the same family takes a one-year work assignment, keeps its house, and plans to return. Presence exists, but the intent to make the new State home does not, so the old domicile continues.
Treating domicile as a single, continuing status has three consequences. A person can have many residences but only one domicile at a time.38 An established domicile does not lapse when the person leaves. It continues until a new one is acquired, and a new one requires residence and the requisite intent to coincide.39 That continuity prevents a person from being left with no State at all during a move. And because a United States citizen can change domicile the moment both elements are met, a person who moves for the very purpose of reaching federal court has still changed domicile.40 The change must be genuine, however, and a party who plans to move back once the lawsuit is over has not made one.41
Two decisions show which fact moves the answer. In Mas v. Perry, Judy Mas, who was married to a French citizen, had lived in Louisiana for roughly three years while she and her husband were graduate assistants. The Fifth Circuit nonetheless held that she remained a citizen of Mississippi, her home State, for diversity purposes.42 Her presence in Louisiana was never in doubt, so the missing element was intent to make Louisiana home. In Gordon v. Steele, Susan Gordon had lived with her parents in Pennsylvania until Pennsylvania lowered the age of majority. She sued Pennsylvania defendants, so her suit survived only if she had acquired a domicile elsewhere, and the court found that Idaho had become hers.43 The difference between the two students is what each intended. One planned to return home when school ended, and the other had left home for good. Gordon also shows that an adult student is no longer tied to her parents' domicile.
The hardest cases involve a person with two real homes, and the Ma and Pa problem is the standard illustration. Lifelong New Yorkers, they buy a Delray Beach condominium. A month later Ma, who hates the heat, wants to go home to New York. They rent the condo to tenants on a five-year lease and sublet a New York apartment. Pa returns to his old job, and the couple keeps a Florida savings account, licenses, doctors, and a place to visit each spring and fall. They then sue a New York driver for the $80,000 loss of their car.44 The case turns on one issue. Diversity exists only if they are Floridians.
A strong answer works through both sides before choosing one. The Florida side points to the condo, the account, the licenses, and the doctors, and to Pa's remark that they kept the condo for when he finally retires, which suggests an eventual return.45 The New York side points to the apartment, the job, the volunteer work, the local bank account, utilities, and car insurance, and to the fact that they live in New York most of the year. Ma has said plainly that she wants to be there, and Pa has no wish to live apart from her.46 A plan to move somewhere later is not an intention to make that place home now, so the better conclusion is that they are New Yorkers suing a New Yorker, and diversity fails even though the amount in controversy is met. Writing both arguments shows the grader the issue is understood, but the answer must still commit to the result the facts better support and say why.
Legal Representatives and Minors
The domicile rules just covered assume that the person whose citizenship matters is the person who sues or is sued. Many litigants cannot act for themselves, however. A decedent's estate, a child, and an adult who lacks mental capacity all appear in court through someone else, and the question is whose citizenship the court counts: the representative's or the person represented. Section 1332(c)(2) answers it directly. The legal representative of a decedent's estate is deemed a citizen only of the same State as the decedent, and the legal representative of an infant or incompetent is deemed a citizen only of the same State as the infant or incompetent.48
The reason for the rule lies in the incentive that the older law created. If the representative's own citizenship counted, whoever controlled the choice of representative could control federal jurisdiction. A family hoping for a federal forum could name an out-of-state executor, and a family hoping to avoid one could name an in-state guardian. Before the statute settled the matter, courts treated the appointment of an out-of-state representative as a possible violation of 28 U.S.C. § 1359, which bars jurisdiction where a party has been improperly or collusively made or joined to invoke the court's power. The circuits disagreed widely about when to apply that statute to representatives.49 The Third Circuit first refused to look at motive when a nonresident administrator sued on behalf of a resident estate, and appointments of convenient representatives became common.50 The same device worked in reverse. In Mecom v. Fitzsimmons Drilling Co., the widow of an Oklahoma decedent, after her wrongful-death suits were removed three times, resigned as administratrix. A Louisiana citizen who had no connection to the family was appointed in her place, which created Louisiana citizens on both sides and defeated removal.51 Congress responded in 1988 by amending § 1332(c)(2), which took the representative's own citizenship out of the analysis and eliminated every question of motive.52 After the amendment, there is no longer any incentive to appoint an out-of-state representative to fit within the diversity statute.53
The rule works the same way whichever side the representative is on. Suppose a commuter domiciled in State A dies in a collision with a driver from State B, and the commuter's brother, who lives in State B, is appointed administrator. The brother is deemed a State A citizen, so the suit is State A against State B and diversity is complete. Now change one fact: the driver is also from State A, and the family names an out-of-state administrator in hopes of reaching federal court. The administrator still takes the decedent's State A citizenship, so State A citizens appear on both sides and diversity fails. The same logic would have changed the result in Mecom, because the Louisiana appointee would have been deemed an Oklahoman, and the suit would have been Oklahoma against Louisiana defendants. In each example the representative's own home is ignored, and the person represented is the only one whose State counts.
The rule is distinct from the question of what happens when a party dies after the suit has been filed. That question is one of substituting a successor under the procedural rules, and it does not alter the principle here, which tells the court whose citizenship to attribute to a representative once one is before it.
A minor's citizenship follows from the same principle, since § 1332(c)(2) makes a representative of an infant a citizen of the infant's State. The remaining question is which State that is. A child ordinarily cannot form the intent to remain that domicile requires, so a minor's domicile is generally that of the parents. Courts look to the State where the custodial parent or parents reside, unless the minor has been emancipated.54 An incompetent adult presents a harder problem, because the person's own capacity to choose a domicile is in doubt. Some courts have placed the domicile where the person lived for many years even when the parents lived elsewhere. Others allow someone with legal authority to fix the domicile of an incompetent unlikely to recover, and still others hold that an adjudged incompetent can change domicile only after regaining enough capacity to make an intelligent choice.55 On an exam, state the statutory rule for the representative, apply the parents' domicile to a minor, and note the disagreement about incompetents only when the facts raise it.