Merlene Frett-Smith v. Joey Vanterpool

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 06-4169
MERLENE FRETT-SMITH,
Appellant
v.
JOEY VANTERPOOL; CHERYL VANTERPOOL,
individually and d/b/a VANTERPOOL
ENTERPRISES INC.; BUILDERS EMPORIUM,
INC.
On Appeal from the District Court of the Virgin Islands
District Court No. 00-CV-0089
District Judge: The Honorable Curtis V. Gómez
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
December 10, 2007
Before: SMITH, NYGAARD, and ROTH, Circuit Judges
Francis E. Jackson, Jr.
P.O. Box 6591
Charlotte Amalie, St. Thomas
USVI, 00804

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Counsel for Appellant
David J. Cattie
Ogletree, Deakins, Nash, Smoak & Stewart
1336 Beltjen Road, Suite 201
Charlotte Amalie, St. Thomas
USVI, 00802
Stephen A. Brusch
P.O. Box 988
Charlotte Amalie, St. Thomas
USVI, 00804
Counsel for Appellees
(Filed: January 3, 2008 )
OPINION
SMITH, Circuit Judge.
Merlene Frett-Smith (“Smith”) appeals from the
judgment of the District Court of the Virgin Islands granting the
post-trial motion to vacate the jury verdict and to dismiss the
complaint for lack of subject matter jurisdiction filed by
defendants Joey and Cheryl Vanterpool, individually and
through Vanterpool Enterprises Inc., and Builder’s Emporium,
Inc. (hereinafter collectively referred to as the “Vanterpools”).

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Section 1332 reads: “The district courts shall have original1
jurisdiction of all civil actions where the matter in controversy
exceeds the sum or value of $75,000, exclusive of interest and
costs, and is between—(1) citizens of different States; (2)
citizens of a State and citizens or subjects of a foreign state . .
. .”
In its Memorandum Opinion, one of the District Court’s2
findings of fact was that “Smith was born in Tortola, British
Virgin Islands . . . . She became a naturalized United States
citizen in 1975.” (Mem. Op. 2.) The District Court, therefore,
appears to find that Smith is a United States citizen. (Mem. Op.
13) (“[Smith] was a naturalized United States citizen . . . .”).
However, it does not seem to find that Smith is a citizen of the
B.V.I., but solely that she was born there. (Mem. Op. 14 n.7)
(“Even assuming, arguendo, that Smith is a dual citizen of the
B.V.I. and the United States . . . .”).
3
Because the parties were not diverse as required under 28 U.S.C.
§ 1332, we will affirm the judgment of the District Court.1
I. Factual Background and Procedural History
Smith was born in Tortola, British Virgin Islands
(“B.V.I.”), and spent much of her childhood in St. Thomas, U.S.
Virgin Islands (“U.S.V.I.”). She became a naturalized United
States citizen in 1975. After high school, Smith attended2
college in Hampton, Virginia, and thereafter moved to Miami.

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In 1983, Smith returned to the U.S.V.I. where she married and
had a son. Her marriage ended in 1986, and Smith moved to
Atlanta and then to Miami. In 1990, Smith moved back to the
U.S.V.I. where she worked for the Virgin Islands Department of
Education as a teacher. On August 18, 1998, a light fixture,
installed by the Vanterpools, fell on Smith while she was
working at Charlotte Amalie High School in the U.S.V.I. Smith
stated in her affidavit that she traveled to Florida in December
of 1998 for treatment related to her injuries and it was then that
she considered Florida her home, intending to remain there.
Smith then returned to the U.S.V.I. in 1999, but may have spent
part of the year in Florida. In December of 1999, Smith moved
to Tortola, B.V.I., to live with her brother. She filed this lawsuit
against the Vanterpools on May 3, 2000, while living in Tortola.
Smith filed suit in the District Court of the Virgin
Islands. She asserted that there was alienage jurisdiction under
28 U.S.C. § 1332(a)(2) and alleged that she was a citizen and
resident of Tortola, B.V.I., and that the Vanterpools were
citizens and residents of the U.S.V.I. The District Court thereby
exercised jurisdiction over the action. According to their brief
submitted to this Court, the Vanterpools moved prior to trial to
preclude Smith’s expert economist from testifying. Counsel
grounded his objection on the fact that the economist was basing
his life expectancy calculations on the U.S. life expectancy
chart. The Vanterpools contended that this table could not be
used respecting Smith, as she was a citizen of the B.V.I. In
response to the motion, Smith stated that she was a citizen of the

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“A litigant generally may raise a court's lack of subject-3
matter jurisdiction at any time in the same civil action, even
initially at the highest appellate instance.” Kontrick v. Ryan,
540 U.S. 443, 455 (2004) (citing Mansfield, C. & L.M.R. Co. v.
Swan, 111 U.S. 379, 382 (1884) (challenge to a federal court's
subject matter jurisdiction may be made at any stage of the
proceedings, and the court should raise the question sua sponte
); Capron v. Van Noorden, 2 Cranch 126, 127 (1804) (judgment
loser successfully raised lack of diversity jurisdiction for the
first time before the Supreme Court); Fed. R. Civ. P. 12(h)(3)
("Whenever it appears by suggestion of the parties or otherwise
that the court lacks jurisdiction of the subject matter, the court
shall dismiss the action.").
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United States residing in the U.S.V.I. The case proceeded to
trial and a jury returned a verdict in Smith’s favor in an amount
exceeding $1.2 million, and the District Court entered judgment
on April 18, 2005.
On the basis of this new information regarding Smith’s
citizenship, the Vanterpools filed a timely post-trial motion to
vacate the jury verdict and dismiss the complaint for lack of
subject matter jurisdiction. In their supporting memorandum,3
the Vanterpools argued that because Smith was a United States
citizen living abroad in the B.V.I., she was not entitled to utilize
§ 1332(a)(2), even if she was also a citizen of that foreign
nation. In response, Smith contended that even if the
Vanterpools’ position was correct, the District Court possessed
diversity jurisdiction pursuant to 28 U.S.C. § 1332(a)(1) because

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Diversity is to be determined at the time the complaint is4
filed. S. Cross Overseas Agencies, Inc. v. Wah Kwong Shipping
Group Ltd., 181 F.3d 410, 414 n.2 (3d Cir. 1999) (citing Smith
v. Sperling, 354 U.S. 91, 93 n.1 (1957)).
6
she was a citizen of Florida when she filed the Complaint. See,4
e.g., Yancoskie v. Del. River Port Auth., 528 F.2d 722, 726 (3d
Cir. 1975) (acknowledging that an alternate basis for federal
jurisdiction may be considered if there is a defect in the initial
basis for jurisdiction). The District Court ordered Smith to
identify and produce objective facts tending to show that she
had established domicile in Florida prior to and up to the time
the action was filed. Ultimately, the District Court concluded
that these “facts” were insufficient to prove domicile in Florida
and found that Smith was either a resident of Tortola, B.V.I., or
a domiciliary of the U.S.V.I. at the time the complaint was filed,
and granted the Vanterpools’ motion.
II. Standard of Review
We exercise jurisdiction over this appeal pursuant to 28
U.S.C. § 1291 and our review of a dismissal for lack of subject
matter jurisdiction is plenary. See Gould Elecs., Inc. v. United
States, 220 F.3d 169, 176 (3d Cir. 2000). However, “[h]istorical
or chronological data which underline a court’s determination of
diversity jurisdiction are factual in nature, and, on review, are
subject to the clearly erroneous rule.” Krasnov v. Dinan, 465
F.2d 1298, 1299–1300 (3d Cir. 1972) (internal citations

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The District Court concluded that if Smith is a dual citizen5
of the B.V.I. and the United States she cannot maintain her
action in federal court. (Mem. Op. 14 n.7.) This Court has an
independent obligation to satisfy itself of jurisdiction if it is in
doubt. Nesbit v. Gears Unlimited, Inc., 347 F.3d 72, 76–77 (3d
Cir. 2003). Because our review of a District Court’s
determination regarding its own subject matter jurisdiction is
plenary, Desi's Pizza, Inc. v. City of Wilkes-Barre, 321 F.3d 411,
419 (3d Cir. 2003), we address this issue even absent clear
findings. See supra note 2.
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omitted). Thus, this Court will not disturb the judgment of the
District Court unless we are “left with the definite and firm
conviction that a mistake has been committed” in the District
Court's factfinding: namely, the finding that Smith was not
“domiciled” in Florida when she commenced her negligence
action. See Korn v. Korn, 398 F.2d 689, 691 (3d Cir. 1968)
(citing United States v. U. S. Gypsum Co., 333 U.S. 364, 395
(1948)).
III. Merits
The first issue we address on appeal is whether Smith can
invoke alienage jurisdiction under 28 U.S.C. § 1332(a)(2) if she
in fact possesses dual citizenship. This issue is one of first5
impression for our Court.
A number of our sister Courts of Appeals have already

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The Coury Court held that, “for a dual national citizen, only6
the American citizenship is relevant for purposes of diversity
under 28 U.S.C. § 1332. Consequently, diversity jurisdiction
may be properly invoked only when a dual citizen’s domicile,
and thus his citizenship, is in a state diverse from that of adverse
parties. Accordingly, the dual citizen should not be allowed to
invoke alienage jurisdiction . . . .” Coury, 85 F.3d at 250.
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held that for a dual national citizen, only the American
nationality is relevant for purposes of diversity under 28 U.S.C.
§ 1332. These courts agree that “diversity jurisdiction may be
properly invoked only when a dual citizen’s domicile, and thus
his citizenship, is in a state diverse from that of adverse parties.”
Coury v. Prot, 85 F.3d 244, 250 (5th Cir. 1996) (citing Action
S.A. v. Marc Rich & Co., 951 F.2d 504 (2d Cir. 1991); Sadat v.
Mertes, 615 F.2d 1176 (7th Cir. 1980); Mutuelles Unies v. Kroll
& Linstrom, 957 F.2d 707 (9th Cir. 1992); Las Vistas Villas,
S.A. v. Petersen, 778 F.Supp. 1202 (D.C. Fla. 1991), aff’d, 13
F.3d 409 (11th Cir. 1994)). Thus, an American national, living
abroad, cannot sue or be sued in federal court under
§ 1332(a)(2). The only way that an American national, living
abroad, can sue under § 1332 is under § 1332(a)(1) if that
national is a citizen, i.e., domiciled, in one of the fifty U.S.
states. Coury, 85 F.3d at 248. We find the Fifth Circuit’s6
reasoning in Coury v. Prot particularly persuasive:
the dual citizen should not be allowed to invoke
alienage jurisdiction because this would give him

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an advantage not enjoyed by native-born
American citizens. . . . [T]he major purpose of
alienage jurisdiction is to promote international
relations by assuring other countries that litigation
involving their nationals will be treated at the
national level, and alienage jurisdiction is
intended to allow foreign subjects to avoid real or
perceived bias in the state courts—a justification
that should not be available to the dual citizen
who is an American.
Id. at 250 (citing 1 Moore’s Federal Practice § 0.75[4]) (internal
citations omitted).
We agree with the courts that have already decided this
issue and hold that for purposes of diversity jurisdiction, only
the American nationality of a dual national is recognized.
Because Smith is a United States citizen, her initial reliance on
alienage jurisdiction was in error. Furthermore, if Smith was
domiciled abroad at the time her Complaint was filed, she would
not be a citizen of any state and diversity jurisdiction under
§ 1332(a)(1) would also fail. Only if Smith was domiciled in a
particular state of the United States at the time the suit was filed,
and that state was diverse from that of the Vanterpools, would
subject matter jurisdiction be present.
The second issue presented by this appeal, then, is
whether the District Court committed clear error when it found
that Smith was not a domiciliary of Florida for purposes of

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invoking diversity jurisdiction under § 1332(a)(1). We accept
the ultimate factual determination of the fact-finder unless that
determination is either “(1) completely devoid of minimum
evidentiary support displaying some hue of credibility, or (2)
bears no rational relationship to the supportive evidentiary data.”
Krasnov v. Dinan, 465 F.2d 1298, 1302 (3d Cir. 1972). Our
independent review of the record reveals that the District
Court’s finding that Smith was not a domiciliary of Florida
when she commenced her action was not clearly erroneous.
Thus, the parties were not diverse for purposes of 28 U.S.C.
§ 1332(a)(1).
Smith argues that she changed her domicile from the
U.S.V.I. to Florida in December of 1998 when she traveled to
Florida for treatment related to her injury. In the alternative,
Smith claims that she never abandoned her Florida domicile in
1990. A party’s citizenship for purposes of subject matter
jurisdiction is synonymous with domicile. McCann v. Newman
Irrevocable Trust, 458 F.3d 281, 286 (3d Cir. 2006). Domicile
is an individual’s “true, fixed and permanent home and place of
habitation. It is the place to which, whenever he is absent, he
has the intention of returning.” Id. (citing Vlandis v. Kline, 412
U.S. 441, 454 (1973)). Therefore, the District Court correctly
recognized that domicile is established by a party’s physical
presence in a state with an intent to remain there indefinitely.
See Juvelis v. Snider, 68 F.3d 648, 654 (3d Cir. 1995). It looked
to several factors that our Court has enunciated to determine a
party’s domicile, including establishment of a home, place of
employment, location of assets, registration of a car, and
generally, the center of one’s business, domestic, social and
civic life. Id.
The District Court found that Smith did abandon her

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Florida domicile in 1990 when she moved to the U.S.V.I. This
finding is supported by the evidence of record indicating that
Smith established a residence in the U.S.V.I., obtained
employment there, filed V.I. tax returns, and relinquished her
Florida driver’s license to obtain a U.S.V.I. driver’s license.
Indeed, by her own admission, Smith confirmed that she did not
consider Florida her home until, “in December of 1998, I moved
to Miami, Florida and began considering it my home from that
point forward.” (emphasis added). Thus, we cannot consider
clearly erroneous the District Court’s finding that Smith
“became a domiciliary of the U.S. Virgin Islands when she
moved there in 1990.” (Mem. Op. 8.)
The District Court also rejected Smith’s contention that
she abandoned the U.S.V.I. as her domicile when she went to
Florida in December of 1998, and established a new domicile in
Florida that she maintained at the time she filed her Complaint
in 2000. In a sworn affidavit, Smith testified that she traveled
to Miami, Florida, in 1998 to establish residence there, that she
considered it her home, and that it was her “true intention” to
remain there. In Korn v. Korn we instructed:
One's testimony as to his intention to establish a
domicile, while entitled to full and fair
consideration, is subject to the infirmity of any
self-serving declaration, and it cannot prevail to
establish domicile when it is contradicted or
negatived by an inconsistent course of conduct;
otherwise stated, actions speak louder than words.
Korn v. Korn, 398 F.2d 689, 691 (3d Cir. 1968). The District
Court heeded this instruction and evaluated Smith’s “entire
course of conduct.” Id. at 691 n.4.

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The District Court noted that “[t]he application also states7
that she left the employ of Charlotte Amalie High School
because she relocated to Florida. . . . This exhibit lacks a stamp
or other indicia of reliability that it was in fact submitted to the
state of Florida on August 12, 1998. This application is also
troubling to the Court as it contradicts Smith’s assertions in her
complaint that she was employed at Charlotte Amalie High
School and living in St. Thomas in August, 1998.” (Mem. Op.
9–10.)
It would be entirely consistent for Smith to have stayed at8
that address temporarily while she received medical treatment at
the Florida Spine Institute in Clearwater, which is approximately
20 miles away. In fact, Thelma Godwin’s affidavit supports
this: “[i]n December, 1998, [Smith] moved to Florida and
resided at my apartment located at 2202 Clearwater Trace
Circle, Tampa, Florida. My family assisted her with
transportation and medical care at the Florida Spine Institute and
12
As proof that she changed her domicile, Smith presented
the District Court with a short-term lease for May of 1999
(which the District Court noted required her to pay a “tourist
tax”), an application for employment that Smith claims she
submitted to the state of Florida on August 12, 1998, and a7
number of affidavits testifying to her intent to remain in Florida.
The employment application listed Smith’s address as 2202
Cedar Trace Circle, Tampa, Florida—the address where Smith
arranged to stay while attending graduate school at the
University of Florida. However, Smith never enrolled at the
University of Florida. Smith provided an affidavit from
residents of the Tampa address asserting that Smith stayed with
them at their home in December of 1998. However, the
affidavit failed to indicate exactly how long Smith stayed at that
location. Further, there are inconsistencies among the8

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other doctors in the area.”
Smith’s brief in opposition to the Vanterpools’ motion to9
dismiss indicates that she flew into Clearwater, Florida.
13
affidavits. Smith’s affidavit contends that she flew into Miami,
Florida, and lived there, near her son. Each of the other9
affidavits indicates that Smith took up residence in Tampa.
Against this evidence, the District Court correctly noted
that Smith provided no proof that she paid taxes, obtained a
driver’s license, registered her vehicle, or maintained a bank
account in Florida. In the instant case, the District Court found
that despite Smith’s declaration that she changed her domicile
to Florida in December 1998, the facts contradicted and negated
her self-serving declaration. Indeed, the evidence supports the
District Court’s finding that Smith’s only connections to Florida
were that she went there for medical treatment in December of
1998, that she applied to graduate school at the University of
Florida, and that her son lived there. Given the evidence
presented, we cannot construe the District Court’s finding that
Smith continued to be “domiciled in the U.S. Virgin Islands in
December, 1998” as clearly erroneous. (Mem. Op. 13.)
It is uncontested that in December of 1999 Smith moved
to Tortola, B.V.I. While Smith contends that she never had any
plans of making Tortola her permanent home, proof of intent to
remain permanently is not the test for domicile. See Krasnov,
465 F.2d at 1300–01. Rather, “if the new state is to be one’s
home for an indefinite period of time, he has acquired a new
domicile.” Id. In her affidavit, Smith did not indicate that she
planned to live in Tortola for a finite amount of time, which
suggests that the amount of time she was to spend in Tortola

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When asked during deposition where she lived, Smith10
responded, “I live in Kingston, Tortola.” When asked how long
she had lived there, Smith indicated that she had lived there
since December of 1999.
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was indefinite. Indeed, she was still in Tortola at the time that
she filed her Complaint in 2000 and at the time of her deposition
in October 2003. Therefore, we cannot construe as clearly10
erroneous the District Court’s finding that “on May 3, 2000,
Smith was either a resident of Tortola B.V.I., or a domiciliary of
the U.S. Virgin Islands.”
If, on May 3, 2000, Smith was a resident of Tortola
B.V.I., she cannot maintain this action. Smith is a United States
citizen, and therefore, she may not utilize her foreign nationality
while living abroad for the jurisdictional purposes of
§ 1332(a)(2). Further, if Smith was domiciled in the B.V.I. at
the time her Complaint was filed, she would not be a citizen of
any state for purposes of diversity jurisdiction under
§ 1332(a)(1). Smith must be a “citizen,” i.e., domiciled in a
particular state of the United States, of a different state than that
of the Vanterpools in order to confer subject matter jurisdiction
on the District Court under § 1332. Because it is undisputed that
the Vanterpools are citizens of the U.S.V.I. and Smith’s claim
that she is a domiciliary of a different state fails, we will affirm
the District Court’s order vacating the judgment and dismissing
the complaint for lack of subject matter jurisdiction.

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