James Dakuras , S R . v. Robert Edwards

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1563
J AMES D AKURAS , S R .,
Plaintiff-Appellant,
v.
R OBERT E DWARDS , et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 4890—Joan B. Gottschall, Judge.
____________
S UBMITTED O CTOBER 16, 2002—D ECIDED N OVEMBER 14, 2002
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Before B AUER , P OSNER , and D IANE P. W OOD , Circuit Judges.
P OSNER , Circuit Judge. The district court dismissed this
diversity fraud suit on the ground that the key defendant
was a citizen of the same state as the plaintiff, namely
Illinois. According to allegations of the complaint that for
purposes of this appeal we are required to treat as true,
repressing our natural skepticism, the plaintiff, James
Dakuras, and a defendant, Ella Calder, who was rightly
deemed an indispensable party by the district judge, lived
together in Illinois in a simulacrum of marriage. After
Calder had a stroke, her relatives, who are Ohioans (and
who are the other defendants in the case), deceived her
into moving to Ohio, where they had her declared incompe-

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2 No. 02-1563
tent. They placed her in an assisted-living facility there and
are preventing Dakuras from having any contact with her.
When they removed her from Illinois to Ohio they took
valuable property owned by Dakuras and they refuse to
return it.
The district court pounced on Dakuras’s claim that
Calder had been deceived into relocating to Ohio, and
concluded that he had pleaded himself out of federal
court. Citizenship for purposes of the diversity jurisdic-
tion is domicile, and domicile is the place one intends
to remain, so involuntary removal does not change one’s
domicile, as we had occasion to note just recently with
respect to prisoners. Bontkowski v. Smith, 305 F.3d 757 (7th
Cir. 2002). Had Calder been domiciled in Illinois but im-
prisoned in Ohio, she would be a citizen of Illinois (un-
less she had decided she didn’t want to go back to Illinois
when she was released), not of Ohio; and the judge rea-
soned that if she was lured to Ohio this is the same as her
having been forcibly removed there. No doubt it would be
the same thing, though we can’t find any cases on the point,
if that were all there was to the matter. But the defendants
concede and indeed emphasize that Calder is incompetent;
it is they, as her guardians, who have decided that she
shall remain in Ohio; and so we must decide whether a
guardian, unlike the criminal justice system, can change
a ward’s domicile, an issue on which other courts are
divided—compare Rishell v. Jane Phillips Episcopal Memorial
Medical Center, 12 F.3d 171, 174 (10th Cir. 1993), which
answers “yes,” with Foster v. Carlin, 200 F.2d 943, 946 (4th
Cir. 1952); Long v. Sasser, 91 F.3d 645, 647 (4th Cir. 1996); and
Juvelis by Juvelis v. Snyder, 68 F.3d 648, 655-56 (3d Cir. 1995),
which answer “no” (though Juvelis also, and inconsistently,
cites Rishell with apparent approval, id. at 655)—and to
which we have not spoken.

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No. 02-1563 3
We think the better view is that a guardian can change
his or her ward’s domicile, in just the same way that a
parent (or, for that matter, a guardian) can change a
child’s domicile—though there is a division of authority
on that question too, with Ziady v. Curley, 396 F.2d 873,
875 (4th Cir. 1968), and In re Hall’s Guardianship, 71 S.E.2d
140, 144 (N.C. 1952), holding that the parent can change
the child’s domicile, and Dunlap by Wells v. Buchanan,
741 F.2d 165, 167-69 (8th Cir. 1984), implying that he can-
not. A prisoner forcibly removed from the state where
he has been living and wants to continue to live and to
which he intends to return when he is released from pris-
on has no significant contact with or commitment to the
state of his imprisonment, a strictly transient and unde-
sired abode. It is different with a person who, whether
because of youth or incompetency, is not able to make
a responsible determination of where to live. The responsi-
bility for making the essential life choices of children and
wards is vested not in them but in their parents or guard-
ians, and we cannot see why the choice of domicile
should not be treated as one of those life choices. As the
court pointedly remarked in the Rishell case, “To prohibit
such determinations [determinations by guardians to
change the domicile of their wards] is to leave the incompe-
tent in a never-ending limbo where the presumption against
changing domicile becomes more important than the
interests of the person the presumption was designed to
protect.” 12 F.3d at 174. As this quotation brings out, dom-
icile matters for other reasons besides jurisdiction. See, e.g.,
DeSilva v. DiLeonardi, 125 F.3d 1110 (7th Cir. 1997). Access
to Medicaid treatment is a major one for an incompetent
and institutionalized person. States have different rules on
the matter, with different financial consequences. A con-
clusion that movement of an incompetent person cannot
change that person’s domicile would mean that for Medi-

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4 No. 02-1563
caid purposes (we do not know whether she is a Medicaid
recipient) Ella Calder remains a citizen of Illinois, whose
benefit levels and rules would continue to govern and
might require her to be institutionalized in Illinois!
We might reach a different conclusion concerning the
defendants’ power to change their ward’s domicile if
the sole or dominant reason for the change was to create
federal jurisdiction—if Calder’s relatives had spirited her
out of Illinois for the purpose of being able to remove
any state-court case brought by Dakuras to federal court.
In such a case there would be grounds for doubt that
they had actually changed her domicile. It is true that if
a change in domicile is bona fide, in the sense that the
individual really and truly intends to remain in his state
of residence, the motive, even if it is to confer or thwart
diversity jurisdiction, is irrelevant. Peterson v. Allcity Ins.
Co., 472 F.2d 71, 74 (2d Cir. 1972); Janzen v. Goos, 302 F.2d
421, 425 (8th Cir. 1962). But in the case of an incompetent,
the decision is that of the guardian, and if it is taken for
improper purposes there is no reason to respect it. Cf. 28
U.S.C. § 1359, which denies federal “jurisdiction of a civil
action in which any party, by assignment or otherwise,
has been improperly or collusively made or joined to in-
voke the jurisdiction of such court.” The plaintiff charges
improper purposes here. Although the defendants are
not trying to confer federal jurisdiction, but to defeat it,
they should not be allowed to gain a litigating advantage
from having changed their ward’s domicile for an im-
proper reason. Stated differently but with the same conse-
quence, they should be estopped to deny that they changed
her domicile.
The judgment of dismissal is therefore reversed with
directions to reinstate the suit.
R EVERSED AND R EMANDED .

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No. 02-1563 5
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-14-02

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