Mallon v. Lutz

217 F. Supp. 454 (E.D. Mich. 1963)

 

RULE:

Physical presence alone is not determinative of domicile, and self-serving declarations of intent may be negatived by other acts inconsistent with such pronouncements. In the usual circumstance, a student who pursues a course of study away from home does not substitute for his domicile his place of residence while attending school, although it is in his power to effect such a change.

FACTS:

Plaintiff,a citizen of Massachusetts, brought a diversity personal injury action. Defendants moved to dismiss on the ground that diversity of citizenship between the parties did not exist. On the date of the accident, plaintiff was domiciled in and was a resident of Michigan, where he was a student at the dental school. Thereafter, plaintiff and his wife moved to Massachusetts, where he was a student at medical school for specialized training in oral surgery. Plaintiff was registered to vote in Michigan and had a Michigan motor vehicle registration and a Michigan driver's license. Plaintiff did subsequently obtain a Massachusetts driver's license. Plaintiff stated that he regards Massachusetts as his permanent address until he will have concluded his course of training. The court granted the motion to dismiss, holding that the existence of diversity of citizenship was to be determined as of the time the suit was commenced and that plaintiff bore the burden of establishing diversity by a preponderance of the evidence. 

ISSUE:

Must domicile and residence be identical?

ANSWER:

No

CONCLUSION:

The court held that a student pursuing a course of study away from home did not substitute for his domicile his place of residence while attending school.

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