Eckerberg v. Inter-State Studio & Publishing Co. , 860 F.3d 1079 ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-2021
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Aaron D. Eckerberg
lllllllllllllllllllll Plaintiff - Appellee
v.
Inter-State Studio & Publishing Co., also known as Inter-State Studio, Inc.
lllllllllllllllllllll Defendant - Appellant
Karl Persinger
lllllllllllllllllllll Defendant
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Appeal from United States District Court
for the Western District of Missouri - Jefferson City
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Submitted: February 9, 2017
Filed: June 26, 2017
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Before SMITH,1 GRUENDER, and BENTON, Circuit Judges.
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SMITH, Circuit Judge.
1
The Honorable Lavenski R. Smith became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on March 11, 2017.
Aaron Eckerberg sued Inter-State Studio & Publishing Company (“Inter-State”)
for damages due to injuries that he sustained when an Inter-State vehicle ran a stop
sign and collided with his pickup truck and trailer in Missouri. He brought suit in the
Western District of Missouri pursuant to 28 U.S.C. § 1332 as a civil action between
citizens of different states. After a five-day trial, the jury awarded him $4.5 million
in damages. Inter-State appeals, arguing that (1) the district court2 lacked subject-
matter jurisdiction because both parties were citizens of Missouri, and in the
alternative, (2) the district court abused its discretion by not remitting the damages
award. We disagree and affirm the judgment of the district court.
I. Background
Eckerberg grew up in Platte City, Missouri. He attended the University of
Central Missouri (formerly Central Missouri State University) and joined the United
States Marine Corps after graduation. The Marine Corps relocated Eckerberg to
Pensacola, Florida, in 1996 for aviation training. While in Florida, he opened a bank
account through the Navy Federal Credit Union, registered to vote in Florida, and
obtained a Florida driver’s license. Under military orders, Eckerberg moved to
California in 1998. Shortly after arriving at his new post, he signed a State of Legal
Residence Certificate, officially declaring his domicile as Florida. Since that time,
Eckerberg has been deployed overseas and assigned to posts in California, Virginia,
Kansas, and North Carolina. Eckerberg eventually obtained the rank of Lieutenant
Colonel, serving primarily as a helicopter pilot. Through all these transitions,
Eckerberg has maintained his bank account, voter registration, tax-filing status, and
driver’s license in Florida.
In 2006, Eckerberg attended the United States Army Command and General
Staff College (CGSC) in Fort Leavenworth, Kansas. For this assignment, he and his
2
The Honorable Matt J. Whitworth, United States Magistrate Judge for the
Western District of Missouri, to whom the case was referred for final disposition by
consent of the parties pursuant to 28 U.S.C. § 636(c).
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wife purchased a home in Platte City, Missouri, where they lived until Eckerberg was
reassigned in 2007. The couple continues to own this residence as a rental property.
In 2011, Eckerberg was stationed in Virginia but did not change his driver’s license,
voting records, or domicile declaration from Florida. In November 2013, Eckerberg
returned to CGSC for a three-year term as a college instructor. At that time, his family
rented a home in Kearney, Missouri, preferring Kearney’s public schools to those in
Kansas. When he arrived in the state, he transferred title of his two vehicles to
Missouri and obtained Missouri licenses for hunting, fishing, and carrying a firearm.
The accident with Inter-State’s vehicle occurred just a few months later in
February 2014. Eckerberg suffered a compression fracture in his spine and a
traumatic brain injury. The accident resulted in $59,000 in direct medical expenses.
In July 2014, Eckerberg sued Inter-State in Missouri federal court, alleging diversity
jurisdiction as a citizen of Florida against a Missouri corporation with its principal
place of business in Missouri. Inter-State admitted liability, but the parties tried
Eckerberg’s damages claim.
At trial, various medical professionals testified about Eckerberg’s injuries.
Eckerberg’s wife, sister, stepbrother, and a longtime friend testified about the
continued physical, emotional, and cognitive effects of the accident. Eckerberg too
testified about his injuries and his accident-related memory problems, anxiety, and
nightmares. His testimony included descriptions of the continued emotional and
psychological effects that his injuries have caused, including effects upon his family:
[M]y kids now when I walk into a room, they’re—it’s more inquisitive,
like, which dad is showing up today from work? You know, is it happy
dad or is it mad dad? So I’m working through that. But it’s hard to see
that look in your kids’ face[s] and think, you know where have I gone
wrong? Where did this come from?
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Economist John Ward testified that Eckerberg’s potential loss of earnings ranged
from $1.3 to $3.3 million because of the accident. The jury returned a verdict of $4.5
million as fair and just compensation “for any damages [they] believe[d] he sustained
and is reasonably certain to sustain in the future as a direct result of the occurrence
mentioned in the evidence.”
After trial, Inter-State moved to dismiss for lack of subject-matter jurisdiction.
The district court held an evidentiary hearing at which both parties presented
evidence regarding Eckerberg’s domicile. The district court determined that
Eckerberg was a domiciliary of Florida for diversity jurisdiction purposes. The court
based its determination on Eckerberg’s property ownership, voting records, tax forms,
and licenses mentioned above. The court also found other factors relevant to the
inquiry, including “the Fitness Reports[3] admitted into evidence at the evidentiary
hearing, Plaintiff’s wife’s medical condition, the economic advantages of living in
Florida generally, . . . and Plaintiff’s own testimony, which included numerous
reasons for his intention to return to the state of Florida at the conclusion of his
military service.” On appeal, Inter-State points to property that Eckerberg purchased
after the accident but before filing suit—approximately 40 acres in Clay County,
Missouri—to demonstrate Eckerberg’s objective intent to make Missouri his
3
A Fitness Report “is the primary means of evaluating a Marine’s performance
and is the Commandant’s primary tool for the selection of personnel for promotion,
augmentation, resident schooling, command, and duty assignments.” The report
includes a description of the Marine’s current job duties, the Marine’s
accomplishments in that position, recommendations for future assignments, and a
ranked list of the Marine’s top three “Duty Preference” assignments.
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domicile.4 This property contained an “unlivable” farmhouse, a detached garage, and
a pond.
Inter-State also moved for remittitur, which the district court denied. In
addition to the economic damages, the district court found that the evidence on
Eckerberg’s non-economic damages, like “permanent pain, cognitive deficits, strained
relationship with wife and children, and loss of life goals including moving up the
ranks in the Marines,” supported the jury’s verdict as fair and reasonable. The court
concluded that “[t]he damage award which the jury found can be supported by the
evidence and is not shocking, monstrous, or plainly unjust.”
II. Discussion
On appeal, Inter-State raises two issues. First, Inter-State asserts that the
district court lacked jurisdiction because Eckerberg had become a Missouri
domiciliary before filing suit. As evidence of Eckerberg’s intent to make Missouri his
domicile, Inter-State points to his purchase of the 40-acre development in Missouri
and his family and friends’ continued physical and emotional support that exists
exclusively in Missouri. Second, Inter-State asserts that the $4.5 million damage
award was grossly excessive in comparison to the actual medical damages of $59,000.
Without attacking the non-economic element of the damage award, Inter-State argues
that Eckerberg’s continued employability warrants remittitur. As discussed below, we
find these arguments unpersuasive.
4
We need not address the parties’ arguments regarding judicial notice of the
date that Eckerberg purchased the Clay County property. The record includes a loan
document for this property issued on June 13, 2014, which was admitted during the
evidentiary hearing as Inter-State’s Exhibit #52. The Eckerbergs filed an application
with the Clay County Planning & Zoning Commission to develop the land as
“Eckerberg Estates” in 2015.
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A. Subject-Matter Jurisdiction
“‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power
authorized by Constitution and statute.’” Gunn v. Minton, 133 S. Ct. 1059, 1064
(2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994)). The Constitution extends the judicial power of the federal courts to
controversies “between Citizens of different States,” U.S. Const. art. III, § 2, and
Congress enacted legislation to give federal courts “original jurisdiction of all civil
actions ‘between . . . citizens of different States,’” Lincoln Prop. Co. v. Roche, 546
U.S. 81, 89 (2005) (ellipsis in original) (quoting 28 U.S.C. § 1332(a)(1)). Such
“[d]iversity jurisdiction requires ‘complete diversity, that is where no defendant holds
citizenship in the same state where any plaintiff holds citizenship.’” Hubbard v.
Federated Mut. Ins. Co., 799 F.3d 1224, 1227 (8th Cir. 2015) (quoting Junk v.
Terminix Int’l Co., 628 F.3d 439, 445 (8th Cir. 2010)). Subject-matter jurisdiction
based on diversity of citizenship must be measured by the “facts that existed at the
time of filing.” Grupo Dataflux v. Atlas Glob. Grp., L.P., 541 U.S. 567, 571 (2004).
“Challenges to subject-matter jurisdiction can of course be raised at any time prior to
final judgment.” Id. We review the question of subject-matter jurisdiction de novo,
but we rely on the district court’s findings of fact underlying its domicile
determination unless they are clearly erroneous. Altimore v. Mount Mercy Coll., 420
F.3d 763, 768 (8th Cir. 2005).
Inter-State argues that the district court lacked subject-matter jurisdiction to
hear this case because both Inter-State and Eckerberg were citizens of Missouri at the
time of filing. “[I]f the jurisdictional allegations are challenged by the defendant, the
plaintiff has the burden of establishing jurisdiction by competent proof and by a
preponderance of the evidence.” Russell v. New Amsterdam Cas. Co., 325 F.2d 996,
998 (8th Cir. 1964). For purposes of jurisdiction, “‘[d]omicile’ is not necessarily
synonymous with ‘residence,’ and one can reside in one place but be domiciled in
another.” Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989)
(citations omitted). “Service personnel are presumed not to acquire a new domicile
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when they are stationed in a place pursuant to orders; they retain the domicile they
had at the time of entry into the services,” yet this presumption may be rebutted by
“clear and unequivocal evidence.” Meléndez–García v. Sánchez, 629 F.3d 25, 41 (1st
Cir. 2010) (quoting 13E Charles A. Wright, Arthur R. Miller & Edward H. Cooper,
Federal Practice and Procedure § 3617, at 607, 609 (3d ed. 2009)).
Since the acquisition of a domicile of choice involves the exercise of
free will, and since members of the armed services are persons under
authority, going where they are sent and abiding in a locality only for so
long as their superiors permit them to remain, enlistment in one of such
services does not ordinarily destroy a domicile of origin, nor in general
does a serviceman acquire a new domicile in a state in which he may be
stationed.
Ellis v. Se. Constr. Co. (Ellis I), 158 F. Supp. 798, 802 (W.D. Ark. 1958), rev’d on
other grounds, 260 F.2d 280 (8th Cir. 1958). “It is presumed that the serviceman has
the intention to return to his home, unless the contrary is shown.” Bowman v. DuBose,
267 F. Supp. 312, 313 (D.S.C. 1967) (quoting Finger v. Masterson, 152 F. Supp. 224,
225 (W.D.S.C. 1957)).
“To establish domicile, an individual must both be physically present in the
state and have the intent to make his home there indefinitely.” Yeldell v. Tutt, 913
F.2d 533, 537 (8th Cir. 1990). To determine intent, we rely on objective factors,
including “declarations, exercise of civil and political rights, payment of taxes,
obtaining of licenses, location of business or occupation, and ownership of property.”
Bruton v. Shank, 349 F.2d 630, 631 n.2 (8th Cir. 1965). A litigant’s self-serving
“[s]tatements of intention are entitled to little weight when in conflict with facts.”
Russell, 325 F.2d at 999 (quoting Tudor v. Leslie, 35 F. Supp. 969, 970 (D. Mass.
1940)). A serviceperson’s “unequivocal” statements regarding intent to adopt a new
domicile, however, may be used to overcome the presumption against persisting
domicile in the home state. See Meléndez–García, 629 F.3d at 43 (citing an
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“unequivocal expression” as possible evidence to rebut the presumption); Ellis v. Se.
Contr. Co. (Ellis II), 260 F.2d 280, 283 (8th Cir. 1958) (relying on the “unequivocal
testimony” of the serviceperson).
Eckerberg was a citizen of Missouri when he joined the Marines. See Miss.
Band of Choctaw Indians, 490 U.S. at 48 (“One acquires a ‘domicile of origin’ at
birth, and that domicile continues until a new one (a ‘domicile of choice’) is
acquired.”). At the evidentiary hearing on domicile, Eckerberg presented evidence
that upon moving to Florida he registered to vote, opened a bank account, and
obtained a driver’s license. He also adduced a “State of Legal Residence Certificate”
that he signed in 1999 memorializing his intent to claim Florida as his “permanent
home and [his] abandonment of the old State of legal residence/domicile.” (Emphasis
omitted.) Eckerberg also testified about his unequivocal intention to claim Florida as
his domicile:
Q. When you lived in Florida, did you intend to stop being a resident
of Missouri and make Florida your legal residence?
A. Yes.
Q. And has that ever changed since that time?
A. No.
Q. And at the time that you retire from the Marine Corps, whatever
the circumstances, in what state do you intend to reside?
A. Florida.
The district court determined that Eckerberg established by “clear and unequivocal
evidence” his intent to abandon Missouri and claim Florida as his new domicile while
he lived there in the late 1990s. The evidence presented at trial adequately supports
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this conclusion, and the district court’s factual determination was not clearly
erroneous. See Blakemore v. Mo. Pac. R.R. Co., 789 F.2d 616, 618 (8th Cir. 1986).
“Once an individual has established his state of citizenship, he remains a
citizen of that state until he legally acquires a new state of citizenship.” Altimore, 420
F.3d at 769. “For purposes of federal jurisdiction, ‘domicile’ and ‘citizenship’ are
synonymous terms.” Ellis II, 260 F.2d at 281 (quoting Ellis I, 158 F. Supp. at 801).
We presume that because Eckerberg previously established Florida as his domicile,
it continues to be his domicile. See Maple Island Farm v. Bitterling, 196 F.2d 55,
58–59 (8th Cir. 1952) (“The presumption is in favor of an original or former domicile
as against an acquired one . . . .” (quoting 28 C.J.S. Domicile § 16 (1941)). To rebut
this presumption, the party alleging a subsequent change in domicile bears the burden
of proof. See id. at 58. Thus, Inter-State must show that Eckerberg had the intent to
abandon Florida and become a citizen of Missouri by clear and unequivocal evidence.
Ellis II, 260 F.2d at 282 (“A citizen of a state does not change his citizenship by
entering military service even though he is assigned to duties in another state or
country, and regardless of the term of service, unless he indicates an intent to abandon
such original domicile and adopt a new one.” (quoting Seegers v. Strzempek, 149 F.
Supp. 35, 36 (E.D. Mich. 1957))); see also Bowman, 267 F. Supp. at 313–14 (placing
the burden on the defendant to prove a serviceman’s domicile change by “clear and
unequivocal” evidence).
Eckerberg testified that if he were to leave the Marines, he would return to
Florida.5 He presented evidence about the desirability of Florida as a place of
5
Domicile requires an intent to remain for an “indefinite time” period
notwithstanding “a floating intention to return” to another place in the future. Gilbert
v. David, 235 U.S. 561, 569 (1915) (quoting Joseph Story, Commentaries on the
Conflict of Laws § 46 (7th ed. 1872)). A person can establish a domicile even with
the intention of moving to a different state. Yeldell, 913 F.2d at 537 (saying domicile
does not require the “[i]ntention to remain there permanently”). Nevertheless,
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retirement for military personnel. He introduced multiple years of Fitness Reports in
which he requested to be reassigned to various promotional opportunities in places
other than Missouri.6 He also presented evidence that his wife suffers from trigeminal
neuralgia, a condition that causes chronic pain in cold climates. Eckerberg testified
that the cold weather in Missouri has strained their marriage due to its effects on his
wife. He further presented evidence that he maintained his driver’s license, his voter
registration, his bank account, and his tax filings in Florida. Individually, none of
these facts prove that Eckerberg intended Florida as his continued domicile at the
time of filing. Collectively, however, they tend to show that Eckerberg did not intend
to shift his domicile back to Missouri.
Inter-State points to several items in the record that could be construed to show
Eckerberg’s intent to make Missouri his domicile. Inter-State points to the hunting,
fishing, and firearm licenses that Eckerberg obtained in Missouri. These, being one-
year in duration, seem more consistent with Eckerberg lawfully pursuing hobbies
during his three-year tenure at Fort Leavenworth than establishing an intent to remain
in Missouri indefinitely. See Mo. Code Regs. Ann. tit. 3, § 10-5.220 (“Residents of
Eckerberg’s testimony about retirement in Florida—while not conclusive of his
Florida domicile—does provide support for the conclusion that he maintained the
intention to return to his “home” of Florida after completing service. See Bowman,
267 F. Supp. at 313.
6
In these Fitness Reports, Eckerberg frequently requested to be assigned to a
“Joint Staff” position, which refers to Central Command positions in Tampa, Florida;
Stuttgart, Germany; Halawa, Hawaii; Colorado Springs, Colorado; and Miami,
Florida. He also requested positions in both the Atlantic and Pacific Fleet Marine
Forces. As late as November 26, 2013, Eckerberg continued to request such positions.
In his final Fitness Report before filing suit (dated June 16, 2014), Eckerberg
provided “no preference” for a future transfer. Inter-State argues that this lack of
preference shows an intent to remain in Missouri, but this evidence could also tend
to show that Eckerberg no longer desired to seek a promotion due to disqualification
because of his injuries.
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Missouri . . . serving in the armed forces of the United States, and their immediate
families residing with them, may receive resident permit privileges.”). Additionally,
Inter-State highlights that Eckerberg has two vehicles titled in Missouri, but this also
seems more consistent with an intention to follow Missouri’s vehicle registration
laws. See Mo. Rev. Stat. § 301.020. Inter-State also asserts that the substantial
support given and available to Eckerberg by family and friends following the accident
in Missouri provided a compelling reason for Eckerberg to decide to stay in Missouri
before filing his complaint. Even if this were a good reason to remain in Missouri, the
facts simply do not support a conclusion that Eckerberg actually decided to remain
in Missouri indefinitely.
Finally, Inter-State emphasizes that Eckerberg owns two properties in
Missouri—a rental house in Platte City and a development property in Clay County.
Eckerberg has maintained the rental property since 2007 as an investment, and
standing alone this fact provides little evidence of his intent to make Missouri his
home in 2014. More persuasive, however, is Eckerberg’s purchase of 40 acres that
he later re-zoned for development of a major subdivision. It may seem unlikely that
Eckerberg would intend to create and manage a major real estate development in
Missouri while living in Florida. However, Inter-State did not cross-examine
Eckerberg about the purpose of this land purchase, its timing, or how he intended to
manage its development from Florida. Thus, we are left only with an unverifiable
suspicion that this purchase may indicate a desire to stay in Missouri. This does not
rise to the level of “clear and unequivocal” proof necessary to overcome the
presumption of Eckerberg’s continued domicile in Florida. See Meléndez–García,
629 F.3d at 41. “If the district court’s account of the evidence is plausible in light of
the record viewed in its entirety, the court of appeals may not reverse it even though
convinced that had it been sitting as the trier of fact, it would have weighed the
evidence differently.” Lesch v. United States, 612 F.3d 975, 980 (8th Cir. 2010)
(quoting Anderson v. Bessemer City, N.C., 470 U.S. 564, 573–74 (1985)). On this
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record, we conclude that the district court’s finding of fact that Eckerberg did not
intend to make Missouri his domicile was not clearly erroneous.
Eckerberg was a domiciliary of Florida when he filed his complaint. Because
Inter-State was a domiciliary of Missouri, the parties were completely diverse. The
district court therefore had subject-matter jurisdiction.
B. Remittitur
“Denial of a motion for remittitur is reviewed for a manifest abuse of
discretion.” Hudson v. United Sys. of Ark., Inc., 709 F.3d 700, 705 (8th Cir. 2013).
The district court can remit a jury verdict only when it is so grossly excessive that
“there is plain injustice or a monstrous or shocking result.” Id. (quoting Eich v. Bd.
of Regents for Cent. Mo. State Univ., 350 F.3d 752, 763 (8th Cir. 2003)). Inter-State
argues that because the $4.5 million award is “grossly excessive” in light of the
$59,000 in medical bills, the district court abused its discretion by denying Inter-
State’s motion for remittitur. We disagree.
“We are guided by the law of the forum state in weighing the excessiveness of
a verdict.” Taylor v. Otter Tail Corp., 484 F.3d 1016, 1019 (8th Cir. 2007) (quoting
Peoples Bank & Tr. Co. v. Globe Int’l Publ’g, Inc., 978 F.2d 1065, 1070 (8th Cir.
1992)). In Missouri, remittitur is available if “the court finds that the jury’s verdict
is excessive because the amount of the verdict exceeds fair and reasonable
compensation for plaintiff’s injuries and damages.” Mo. Rev. Stat. § 537.068. “If the
evidence viewed in the light most favorable to upholding the ruling of the trial
court . . . afford[s] reasonable and substantial support for the trial court’s order or
remittitur, then there could be no abuse of discretion and the trial court’s action must
be sustained.” Badahman v. Catering St. Louis, 395 S.W.3d 29, 37 (Mo. 2013)
(quoting Steuernagel v. St. Louis Pub. Serv. Co., 238 S.W.2d 426, 431–32 (Mo. 1951)
(en banc)). Thus, if a damage award is supported by the evidence, we will not find the
award excessive.
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Inter-State argues that the damages award, especially in relation to lost wages,
was excessive because Eckerberg has continued his employment with the Marines
and he could potentially maintain that employment until retirement. Although
Eckerberg testified that his job opportunities would be limited because of the accident
and that he is likely unable to be deployed, Inter-State argues that “undeployable” is
not equivalent to “unemployable.” This argument, however, ignores the jury’s option
to credit testimony from an economist that established large economic losses even if
Eckerberg remained employed but undeployable with the Marines. Further, the
economist testified that Eckerberg’s inability to fly eliminated his most lucrative
career opportunity as a private-sector helicopter pilot, which was worth over $4
million. Even if Eckerberg remained employed by the Marines until retirement, the
injuries sustained in the accident have substantially impaired his potential for career
advancement. The economist estimated this loss to be worth up to $2.35 million. “The
jury was entitled to determine what weight, if any, to give any of the expert testimony
offered by the parties.” Niemiec v. Union Pac. R.R. Co., 449 F.3d 854, 859 (8th Cir.
2006). The jury had sufficient basis to find substantial economic losses.
Inter-State’s damages objection also ignores the scope of the jury award, which
also encompassed non-economic damages like the mental and physical effects of the
crash. “Awards for pain and suffering are often ‘highly subjective and should be
committed to the sound discretion of the jury, especially when the jury is being asked
to determine injuries not easily calculated in economic terms.’” Hudson, 709 F.3d at
705 (quoting Frazier v. Iowa Beef Processors, Inc., 200 F.3d 1190, 1193 (8th Cir.
2000)).
An appellate court should be extremely hesitant to overturn a jury
verdict which includes damages for pain and suffering, which were
included in the general verdict in this case. There is no precise or exact
measuring stick for calculating general damages for pain and suffering.
Although the jury should not pick a figure out of the air, exact
compensation for pain and suffering is impossible.
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Taken Alive v. Litzau, 551 F.2d 196, 198 (8th Cir. 1977). Our precedent supports
upholding non-economic jury awards for situations in which pain and suffering are
significant. In Eich, we reversed the district court’s remittitur of a non-economic
damages award of $200,000 to $10,000 for an employee that experienced a hostile
work environment over a seven-year period because non-economic awards “should
be committed to the sound discretion of the jury.” 350 F.3d at 763 (quoting Frazier,
200 F.3d at 1193); see also Ondrisek v. Hoffman, 698 F.3d 1020, 1027 (8th Cir. 2012)
(affirming a compensatory damage award of $3 million for “pain, suffering, and
mental anguish”). Here, Eckerberg will be physically impaired for the rest of his life,
and his injuries include both physical and emotional pain. With both economic and
non-economic damages included in the general award, the total is not “monstrous,
shocking, or grossly excessive.” Hudson, 709 F.3d at 705.
III. Conclusion
Accordingly, we affirm the judgment of the district court.
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