## Facts

- George W. Newman created the George W. Newman Irrevocable Trust in 1990 to acquire and hold property in Secaucus, New Jersey, and appointed three trustees, including a bank trustee later succeeded by the Bank of New York.
- Newman’s related development entity was formed to develop the trust property; William E. McCann was hired as senior executive to run operations.
- A dispute arose over McCann’s compensation; two trustees negotiated a settlement granting McCann an equity interest, while the third trustee sued in New Jersey state court to block any grant of interest in trust property.
- McCann died in February 2002 while the state disputes were pending; his widow, Virginia McCann, sought to intervene for the estate but was denied, and the state matters were later dismissed after the negotiating trustees resigned.
- The estate later filed a federal action in the District of New Jersey to enforce the proposed equity agreement and invoked diversity jurisdiction, turning on McCann’s domicile at death.
- McCann had lived in New Jersey until 1990, purchased a second home in New Hampshire, sold the New Jersey home in 2000, and thereafter worked in New Jersey during the week while spending weekends in New Hampshire; by late 2001 he largely stopped commuting and visited New Jersey only a few times before death.

## Issues

1. What standard of proof applies to establishing a change of domicile for purposes of diversity jurisdiction: clear and convincing evidence or preponderance of the evidence?
2. Whether the district court erred by resolving the Rule 12(b)(1) domicile dispute on a written record without an evidentiary hearing.

## Decision

- The Third Circuit vacated the dismissal for lack of subject-matter jurisdiction and remanded.
- The court held the proper standard to prove a change of domicile for diversity is preponderance of the evidence, not clear and convincing evidence.
- The court held the district court did not abuse its discretion by declining to hold an evidentiary hearing where material historical facts were not genuinely disputed, the parties had developed a record through discovery, and no hearing was requested.

## Legal Principles

- The party invoking federal diversity jurisdiction bears the burden of proving citizenship facts, including domicile, by a preponderance of the evidence.
- A presumption favoring an established domicile affects only the burden of production (requiring the proponent of change to come forward with evidence) and does not raise the burden of persuasion or justify a heightened proof standard.
- A district court may decide a factual attack on subject-matter jurisdiction under Rule 12(b)(1) on affidavits, depositions, and other written submissions when credibility determinations are unnecessary and the material facts are not materially disputed.

## Conclusion

The Third Circuit required the district court to reevaluate whether diversity jurisdiction existed under the ordinary preponderance standard for proving a change of domicile, while approving the district court’s discretion to decide the jurisdictional question without a live evidentiary hearing on the record presented.


McCann v. The George W. Newman Irrevocable Trust, 458 F.3d 281 (3d Cir. 2006)