Gary Vaughn, Jr. v. Tonia Vaughn, et al

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: CHAGARES, KRAUSE and ROTH, Circuit Judges. Total Pages: 4.

Case: 15-3595

Document: 003112502793

Page: 1

Date Filed: 01/04/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 15-3595
___________
GARY E. VAUGHN, JR.,
Appellant
v.
TONIA N. VAUGHN; MUSTANG SALOON
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(W.D. Pa. No. 3-14-cv-00243)
District Judge: Honorable Kim R. Gibson
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 23, 2016
Before: CHAGARES, KRAUSE and ROTH, Circuit Judges

(Filed: January 4, 2017)
___________
OPINION*
___________
PER CURIAM

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

Case: 15-3595

Document: 003112502793

Page: 2

Date Filed: 01/04/2017

Pro se appellant Gary Vaughn appeals from an order of the United States District
Court for the Western District of Pennsylvania dismissing his complaint for lack of
diversity jurisdiction. We will affirm.
Gary Vaughn initiated this action in 2014 while incarcerated at F.C.I. Fort Dix in
New Jersey,1 alleging that his wife, Tonia, who is domiciled in Pennsylvania, violated
their pre-nuptial agreement. Prior to his incarceration, Gary was domiciled with Tonia
and their son in Pennsylvania. On September 29, 2015, the District Court dismissed
Vaughn’s complaint for lack of diversity jurisdiction, finding him to be a citizen of
Pennsylvania, and rejecting his “attempts to claim Maine citizenship on the basis of an
alleged future intent to reside there.” Following the District Court’s denial of his motion
for reconsideration, this timely appeal ensued.
We have jurisdiction under 28 U.S.C. § 1291 and exercise plenary review over the
District Court’s dismissal of a complaint for lack of diversity jurisdiction. See FrettSmith v. Vanterpool, 511 F.3d 396, 399 (3d Cir. 2008). Historical or chronological data
which underline a court’s determination are subject to the clearly erroneous rule, and we
“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.” Id. (internal citations and quotations omitted).

1

Gary Vaughn is currently serving a 72-month sentence imposed by the Middle District
of Pennsylvania on money laundering and related charges. Gary and Tonia are awaiting
trial on separate money laundering charges in the Western District of Pennsylvania,
where Tonia is currently on pre-trial release.
2

Case: 15-3595

Document: 003112502793

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Date Filed: 01/04/2017

There is no dispute that Tonia is domiciled in Pennsylvania. Therefore, as the
proponent of diversity jurisdiction, and admitted citizen2 of Pennsylvania prior to his
incarceration, Gary Vaughn must “initially carry the burden of production to rebut the
presumption in favor of an established domicile” – Pennsylvania – and then “carry the
burden of persuasion by proving that a change of domicile occurred, creating diversity of
citizenship.” McCann v. Newman Irrevocable Trust, 458 F.3d 281, 289 (3d Cir. 2006).
He must meet both burdens with a preponderance of the evidence. Id. at 290. And
though a citizen can change his domicile instantly, “[t]o do so . . . he must take up
residence at the new domicile, and he must intend to remain there. Neither the physical
presence nor the intention to remain is alone sufficient.” Krasnov v. Dinan, 465 F.2d
1298, 1300 (3d Cir. 1972).
Here, Vaughn contends that he “clearly meets the standard of rebuttal for
citizenship with the averment that upon release, he would be returning to the State of
Maine.” But “[i]t is the citizenship of the parties at the time the action is commenced
which is controlling,” and Vaughn’s mere expression of intent to take up residence in
Maine, without more, is insufficient to establish his domicile there.3 Id. Because he has

2

Citizenship and domicile are synonymous terms for purposes of diversity jurisdiction.
McCann v. Newman Irrevocable Trust, 458 F.3d 281, 286 (3d Cir. 2006).
3

Vaughn relies on Pierro v. Kugel, 386 F. App'x 308, 309 (3d Cir. 2010), where a panel
of this Court in a non-precedential opinion observed that “the domicile of a prisoner
before his imprisonment presumptively remains his domicile during his imprisonment.
That presumption, however, may be rebutted by showing a bona fide intent to remain in
the state of incarceration on release.” Vaughn has expressed no intent to remain in New
3

Case: 15-3595

Document: 003112502793

Page: 4

Date Filed: 01/04/2017

offered no other evidence to rebut the presumption of Pennsylvania domicile, he has
failed to carry his burden. We will affirm the order of the District Court.

Jersey upon his release, but reads Pierro as permitting him to rebut the presumption of
Pennsylvania domicile by expressing his intent to reside in another state – Maine –
following his incarceration. He is mistaken. Domicile requires both physical presence
and intent to remain.
4