Coury v. Prot , 85 F.3d 244 ( 1994 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 94-20084
Summary Calendar
_____________________
DAVID F. COURY,
Plaintiff-Appellee,
Cross-Appellant,
VERSUS
ALAIN PROT,
Defendant-Appellant,
Cross-Appellee.
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Appeals from the United States District Court
for the Southern District of Texas
(CA-H-92-1915)
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(November 3, 1994)
Before JONES, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:1
In April 1992, David Coury sued Alain Prot in Texas state
court seeking to enforce a contract arising out of Coury's
testimony as an expert witness in another proceeding. Prot removed
the action to federal district court, claiming that he was "a
citizen of France and is domiciled there".2 Accordingly, because
1
Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the court has determined that this opinion
should not be published.
2
In his removal petition, Prot also stated that he was a "dual-
citizen both of France and the United States however, significantly
prior to the time that suit was filed against him he became
Coury's domicile was in California, Prot claimed diversity of
citizenship existed pursuant to 28 U.S.C. § 1332(a)(2), the
"alienage provision".3
After suffering an adverse judgment, Prot asserted that the
district court may have lacked subject matter jurisdiction, viz.,
no diversity jurisdiction. Compounding the matter further, Prot
indicated, in post-judgment proceedings, that he had only been
residing temporarily in France, without any intention of
establishing a new permanent residence; he intended to return one
day to his homestead in Texas. The problem arises because of
Prot's dual citizenship and his alleged domicile in France. If a
person is a United States citizen but domiciled abroad, then he is
not a citizen of any state; diversity jurisdiction under § 28
U.S.C. § 1332(a)(1) (cases between citizens of different states)
fails. Smith v. Carter, 545 F.2d 909 (5th Cir.), cert. denied, 431
U.S. 955 (1977). If Prot's domicile was Texas, although removal
domiciled in France."
Of course, had Prot claimed his domicile was Texas, removal
would have been improper. 28 U.S.C. § 1441(b) (a defendant may not
remove a state action to federal court if the defendant is a
citizen of the state in which the action is filed). In such a
scenario, Coury would have been required to seek a remand of the
action to state court within 30 days of the removal. 28 U.S.C. §
1447(c).
3
28 U.S.C. § 1332(a) provides, in pertinent part:
The district courts shall have original
jurisdiction of all civil actions where the matter
in controversy exceeds the sum or value of $50,000,
exclusive of interest and costs, and is between ...
(2) citizens of a State and citizens or
subjects of a foreign state ....
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may have been improper, subject matter jurisdiction would not be
lacking. Grubbs v. General Elec. Credit Corp., 405 U.S. 699, 702
(1972).
As is more than well-established, lack of subject matter
jurisdiction can be raised by any party at any time, even on
appeal. On this record, we cannot determine Prot's domicile at the
time the complaint was filed. We therefore remand this action to
the district court for it to determine whether subject matter
jurisdiction exists. Von Dunser v. Aronoff, 915 F.2d 1071 (6th
Cir. 1990); see Illinois Cent. Gulf R.R. v. Pargas, Inc., 706 F.2d
633 (5th Cir. 1983).
If, after resolving the issue of Prot's domicile, see Ynclan
v. Department of the Air Force, 943 F.2d 1388, 1390 (5th Cir.
1991), the district court finds that jursidiction does exist, the
action is to be returned to this court for disposition. If, on the
other hand, it finds jurisdiction lacking, the district court must,
of course, vacate its judgment.
The action is REMANDED for proceedings consistent with this
opinion.
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