Lopez-Flores v. Bagazinski

Full title: CRISPULO LOPEZ-FLORES, Plaintiff, v. GERALD A. BAGAZINSKI, P.C., Defendant

Court: United States District Court, E.D. Michigan, Southern Division

Date published: Jan 19, 2006

Case No. 05-74391 (E.D. Mich. Jan. 19, 2006)

Opinion

Case No. 05-74391.

January 19, 2006

ORDER DENYING PLAINTIFF'S MOTION TO SET ASIDE DISMISSAL

PAUL BORMAN, District Judge

Before the Court is Plaintiff's Motion to set aside the Court's December 29, 2005 dismissal. The Court dismissed Plaintiff's case because subject matter jurisdiction did not exist under 28 U.S.C. § 1331. In the instant motion, Plaintiff takes the position that federal jurisdiction exists based on diversity of state citizenship. Plaintiff argues that because he is a citizen of Puerto Rico and Defendant is a resident of Michigan, diversity jurisdiction applies.¹

1 Plaintiff does not allege diversity jurisdiction under 28 U.S.C. § 1332 in his Complaint.

State citizenship for the purpose of the diversity requirement is equated with domicile. Sadat v. Mertes, 615 F.2d 1176, 1180 (7th Cir. 1980); Rodriguez-Diaz v. Sierra-Martinez, 853 F.2d 1027 (1st Cir. 1988). A person does not lose their previous domicile until a new one is acquired. Kaiser v. Loomis, 391 F.2d 1007 (6th Cir. 1968). Residence in the new domicile and the person's intent to remain determine whether a new domicile has been established. Von Dunser v. Aronoff, 915 F.2d 1071, 1073 (6th Cir. 1990); see also Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989).

For Plaintiff to establish Puerto Rican citizenship, Plaintiff must show that Puerto Rico is his domicile. See Stifel v. Hopkins, 477 F.2d 1116, 1120 (6th Cir. 1973). To acquire a domicile within a particular state or territory, a person must be physically present in the state and intend to make it his home indefinitely or lack the intention to make his home elsewhere. Deasy v. Louisville Jefferson County Metro. Sewer Dist., 47 Fed. Appx. 726, 728 (6th Cir. 2002) (citing Gilbert v. David, 235 U.S. 561 (1915)); Stifel, 477 F.2d at 1120 (stating that citizenship for purposes of 28 U.S.C. § 1332(a) means domicile rather than residence). Here, Plaintiff resides in Detroit, Michigan. When Plaintiff filed his Complaint in case number 03-74416 and in this case, 05-74391, he listed a street address located in Detroit, Michigan. Thus, Plaintiff has not shown that he is domiciled in Puerto Rico for purposes of diversity jurisdiction. Therefore, the Court finds that subject matter jurisdiction does not exist based upon 28 U.S.C. § 1332.

Accordingly, the Court DENIES Plaintiff's Motion to Set Aside Dismissal.

SO ORDERED.