Larry Johnson v. Olga Johnson

MEMORANDUM

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.

Federal district courts may only exercise jurisdiction under 28 U.S.C. § 1382 (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…