Larry Dale Johnson v. Olga V. Johnson

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LARRY DALE JOHNSON,
Plaintiff - Appellant,
v.
OLGA V. JOHNSON,
Defendant - Appellee.
No. 13-35496
D.C. No. 6:13-cv-00495-AA
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, Chief District Judge, Presiding
Submitted August 26, 2015**
San Francisco, California
Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit Judges.
Larry Dale Johnson appeals from the district court’s dismissal of his case for
lack of subject matter jurisdiction. We have jurisdiction under 28 U.S.C. § 1291,
and we affirm.
FILED
AUG 31 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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Federal district courts may only exercise jurisdiction under 28 U.S.C.
§ 1332(a)(1) when diversity of citizenship is satisfied. A person’s domicile
changes when he is both physically present in, and evinces an intention to remain
indefinitely in, a different state. Lew v. Moss, 797 F.2d 747, 750 (9th Cir. 1986).
A person does not lose his old domicile until so acquiring a new one, and “the
courts have created a presumption in favor of an established domicile as against a
newly acquired one.” Id. at 750–51. The district court’s determination of
Johnson’s domicile is a mixed question of law and fact that we review under the
“clearly erroneous” standard. Id. at 750.
Johnson has not established that he is domiciled anywhere but Oregon, his
last place of residence before he was incarcerated in Massachusetts. His relocation
to Massachusetts was forced, which does little to evince an intent to make it his
permanent home. Further, he expressed no intent nor has taken any actions to
demonstrate an intent to establish his home there—or anywhere else outside
Oregon—after his release. Johnson’s statement that he is “an American citizen
nonresident of any state” does not further his cause or establish diversity.
Therefore, Johnson remains domiciled in Oregon. Because defendant is also a
citizen of Oregon, there is no diversity of citizenship. The district court did not err
in dismissing the case for lack of subject matter jurisdiction.
AFFIRMED.

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