Unpublished Disposition, 940 F.2d 668 (9th Cir. 1991)

MEMORANDUM^** 

Donald Gee appeals pro se the district court's order denying his timely motion to alter or amend the judgment pursuant to Fed. R. Civ. P. 59(e). We review the denial of a Rule 59(e) motion for an abuse of discretion. See McCarthy v. Mayo, 827 F.2d 1310, 1314 (9th Cir. 1987). We affirm.

Gee filed a complaint for damages against the defendants invoking diversity jurisdiction pursuant to 28 U.S.C. § 1332. Gee's cause of action against the defendants involved the home he owned in Montana. In his complaint, Gee asserted diversity jurisdiction by alleging that he was a resident of Kansas, and that the defendants were residents of Montana. The defendants filed a motion to dismiss Gee's complaint for lack of subject matter jurisdiction. The defendants challenged Gee's invocation of diversity jurisdiction based on Gee's allegation that he was a resident of Kansas. The defendants assert that Gee was not voluntarily in Kansas, but instead was incarcerated in the Leavenworth, Kansas County Jail, pursuant to a request of the State of Wyoming that he be held for extradition. The defendants presented the court with various documents establishing Gee's incarceration.¹ 

The district court granted the defendants' Rule 12(b) (1) motion and dismissed Gee's complaint without prejudice.²  Gee subsequently filed a Rule 59(e) motion to alter or amend the judgment. In his motion, Gee asserted that he did not have any residency or domicile in Montana.

The district court correctly denied Gee's Rule 59(e) motion. The fact that Gee was incarcerated in Kansas did not prove he was domiciled there. "One does not change his residence to prison by virtue of being incarcerated there." See Cohen v. United States, 297 F.2d 760, 774 (9th Cir. 1962), cert. denied, Cohen v. United States, 369 U.S. 865; accord Jones v. Hadican, 552 F.2d 249, 251 (8th Cir. 1977). Moreover, it is up to the party asserting diversity of citizenship to show that such is in fact the case. See Lew v. Moss, 797 F.2d 747, 749 (9th Cir. 1986); see also Trentacosta v. Frontier Pac. Aircraft Industries, 813 F.2d 1553, 1559 (9th Cir. 1987) (the party invoking the court's jurisdiction bears the burden of proof). Because Gee did not carry his burden of proving diversity of citizenship, the district court did not err in dismissing Gee's complaint for lack of subject matter jurisdiction. See Lew, 797 F.2d at 749. Thus, the district court did not abuse its discretion in denying Gee's Rule 59(e) motion to alter or amend the judgment dismissing his complaint.

AFFIRMED.