Mas v. Perry

489 F.2d 1396 (5th Cir. 1974)

Yeazell, pp. 229-232


Facts: The plaintiffs are a French man and a Mississippi woman.  They were married in Mississippi and then they moved to Louisiana to be grad students.  While they were living in Louisiana, the plaintiffs discovered that Perry had been observing them through two-way mirrors in the apartment they were renting from him.  The plaintiffs sued and won on the merits.  During the trial, the defendant objected to the court’s subject matter jurisdiction, claiming there was no diversity between the parties.  The plaintiffs won and the defendant appealed to the 5th Circuit solely on jurisdictional grounds.


Issue: Does the federal court have diversity jurisdiction over this matter?


Rule: Complete diversity of the parties is required in order for diversity jurisdiction to exist, meaning that no party on one side may be a citizen of the same state as any party on the other side.


Analysis: The court looks at Mr. and Mrs. Mas in turn.


The court finds that Mr. Mas was still a citizen of France at the time of the filing of the lawsuit because he had not become a naturalized American citizen.


The court finds that Mrs. Mas was domiciled in Mississippi at the time of the suit.  Mrs. Mas lived in Mississippi when she married Mr. Mas, and her domicile did not change when they moved to Lousiana because there were not going to be there indefinitely, but only as students.


The court refuses to apply the general rule that a wife is domiciled where her husband is domiciled to the case where an American woman marries a foreign man.  The court cites a statute, 8 U.S.C. § 1489, which says that an American woman does not lose her citizenship if she marries a foreign man.


Conclusion: The court affirmed the trial court’s ruling.


Notes and Questions



a.      If the amount in controversy is greater than $75,000, then yes, 28 U.S.C. § 1332(a)(2) allows diversity jurisdiction over a case where one party is a U.S. citizen and the other is a foreign citizen.

b.     The theory is that a state court would be more biased against a foreigner than a federal court would.

c.     If Mas was a permanent resident (had a green card), then he would be considered a citizen of Louisiana for diversity purposes and his suit would fail for lack of subject matter jurisdiction.


a.      Okay.

b.     Mrs. Mas was a grad student the whole time she was in Louisiana.  The old rule was that you can’t gain or lose a domicile merely by being a student.  By the time of the present case and Gordon, this was changing.  In Gordon, the court based its opinion on more than just the plaintiff’s attending school.  The thing that really swayed that court was the fact that Gordon stated that she intended to remain in Idaho.  So if Mrs. Mas doesn’t intend to remain in Louisiana, her domicile is sort of in limbo, but it remains officially in Mississippi.

c.     Why doesn’t this rule work the other way?  That’s so sexist! 

3.     Okay!  Both people sue at once.  That’s true in the present case.

a.      I think what Yeazell is implying is that jurisdiction rests on different parts of § 1332 for the different defendants.  I think he’s suggesting that this could be a problem.  I guess maybe his idea is that we have two different controversies with two different grounds for diversity jurisdiction.  I don’t know what the heck he’s saying.

b.     There may not be jurisdiction under § 1332(a)(2), but I think there definitely would be under § 1332(a)(3).  There would be citizens of different states, plus a foreign citizen.  I don’t really see what Steve is getting at.


a.      So the constitutional “circle” is bigger than the statutory “circle”, just like in subject matter jurisdiction.

b.     It would seem that this creates an exception to the rule of complete diversity, but I suppose the true effect would depend on how the statute is interpreted.

5.     The statute doesn’t say anything about “citizens of different foreign states” like it does about “citizens of different [U.S.] States”.

a.      There seems to always have to be at least one American in the mix in order for diversity jurisdiction to lie.



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