McNeal v. Workmaster

Filing 23

OPINION AND ORDER that plaintiff Sylvia Yvonne McNeal's motion for remand 10 is granted and that, pursuant to 28 U.S.C. § 1447(c), this cause is remanded to the Circuit Court of Barbour County, Alabama, for want of subject-matter jurisdic tion. The clerk of the court is DIRECTED to take appropriate steps to effect the remand. Signed by Honorable Myron H. Thompson on 11/30/09. Certified copy of Opinion mailed to the Clerk of the Circuit Court of Barbour County. Terminated: Pretrial Conference set for 7/28/2010; Jury Trial set for 8/30/2010.(br, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION SYLVIA YVONNE McNEAL, an individual, ) ) ) Plaintiff, ) ) v. ) ) KURT CHRISTIAN WORKMASTER, ) an individual, ) ) Defendant. )

CIVIL ACTION NO. 2:09cv758-MHT (WO)

OPINION AND ORDER This lawsuit, in which plaintiff Sylvia Yvonne McNeal charges that she was injured in an car accident caused by defendant Workmaster Kurt from Christian state Workmaster, to federal was court removed based 28 by on

diversity-of-citizenship §§ 1332, 1441. McNeal's motion

jurisdiction.

U.S.C.

The lawsuit is now before the court on to remand and contending the that both the

diverse-citizenship

amount-in-controversy

requirements are lacking.

For the reasons that follow,

the court holds that the diverse-citizenship requirement is not met and thus the remand motion must be granted.

I. BACKGROUND "Diversity [of citizenship] is determined when the suit is instituted, not when the cause of action arose." McDonald v. Equitable Life Ins. Co., 13 F.Supp.2d 1279, 1281 (M.D. Ala. 1998) (Thompson, J.). Workmaster

contends that the diverse-citizenship requirement is met here because, at the time this lawsuit was filed in state court on June 29, 2009, he was a citizen of Georgia and McNeal was a citizen of Alabama; McNeal contends that the requirement is not met because, like Workmaster, she was a citizen of Georgia at that time. the diverse-citizenship requirement Therefore, whether is met turns on

McNeal's citizenship at the time this lawsuit was filed in state court. Based on the federal-court record,

including testimony taken from McNeal in an evidentiary hearing, the court now finds the following facts: For the past seven years, McNeal has resided with her stepmother in Macon, Georgia. In McNeal's words, "I

2

consider

this

and

have

always

considered

this

my

permanent residence." Remand Mot., Ex. 3 (Doc. No. 10). Although she considers Macon her permanent residence, McNeal periodically stayed with her ex-boyfriend at his rental home in Eufaula, Alabama from late 2008 through mid-2009. During this time, she began working at a

Eufaula grocery store, at which she is still employed. She also opened a Eufaula bank account, where she

continues to deposit her paycheck.

McNeal received mail

at her ex-boyfriend's Eufaula address as well as at a Eufaula post office box. church in Eufaula. In May and June of 2009, McNeal had some difficulties with her ex-boyfriend. On June 25, 2009--just four days She occasionally attends a

before she filed the complaint in this lawsuit--McNeal filed a "Petition for Protection from Abuse" in a local Alabama court. In that petition, she stated under oath

that she was a "resident of Barbour [County] in Alabama," and provided a Eufaula address. Removal Notice, Ex. 3 at

3

1 (Doc. No. 1-4).

In the same document, she

referred to

her ex-boyfriend's Eufaula residence as "our" house and stated that "both of our names are on" the lease. Id. at 2. Despite her statements in the petition, McNeal now commutes between Eufaula and her residence in Macon, a drive she calculates at two hours and eight minutes. While she kept, and still keeps, all of her furniture in Macon--including antiques, a dining room set, a love seat, and a baby piano--she brought two suitcases of clothes, a laptop computer, an easel, and some artwork to Eufaula. When she stayed with her ex-boyfriend she Remand Mot., Ex. 3 (Doc. No.

"lived out of a suitcase." 10).

McNeal maintains a Georgia driver's license and a nursing license. She is, and has been,

Georgia

registered to vote in Georgia.

She maintains a Georgia She receives

bank account and pays taxes in Georgia.

mail at her Macon address and she considers herself a member of a Macon church. While she has indicated that

4

she signed a lease with her ex-boyfriend, she has not contributed to his rent; and, although she works in Eufaula, she also has continued to see patients in

Georgia as a private nurse. II. DISCUSSION Unless otherwise prohibited by Congress, "any civil action brought in State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or defendants, to the district court of the United States for the district and division pending." embracing the place where the action is

28 U.S.C. § 1441(a).

When a lawsuit is

removed to federal court, "the party invoking the court's jurisdiction preponderance bears of the the burden of ... proving, the by a of

evidence,

existence

federal jurisdiction."

McCormick v. Aderholt, 293 F.3d

1254, 1258 (11th Cir. 2002). Workmaster contends that this case falls within the court's diversity-of-citizenship jurisdiction pursuant to 5

28 U.S.C. § 1332.

He maintains that removal is proper

because "the matter in controversy exceeds the sum or value of $ 75,000" and the parties were "citizens of different States" at the time the state-court complaint was filed on June 29, 2009. 28 U.S.C. § 1332. Because

the court finds that Workmaster and McNeal were both citizens of Georgia at the time the complaint was filed, the court need not reach the issue of jurisdictional amount. "Citizenship is equivalent to `domicile' for purposes of diversity jurisdiction." McCormick, 293 F.3d at 1257. "A person's domicile is the place of `his true, fixed, and permanent home and principal establishment, and to which he has the intention of returning whenever he is absent therefrom.'" Id. at 1257-58 (citation and

quotation marks omitted); see also Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989) ("[D]omicile is established by physical presence in a place in

connection with a certain state of mind concerning one's

6

intent to remain there.").

Because of the subjective

element of domicile, it "is not necessarily synonymous with `residence,' and one can reside in one place but be domiciled in another." Miss. Band of Choctaw Indians,

490 U.S. at 48 (citations omitted) "[O]nce an individual has established a domicile, he remains a citizen there until he satisfies the mental and physical requirements of domicile in a new state."

McDonald v. Equitable Life Ins. Co., 13 F.Supp.2d 1279, 1281 (M.D. Ala. 1998) (Thompson, J.). of domicile requires at `[a] the concurrent new Thus, "[a] change showing with of (2) (1) an

physical

presence

location

intention to remain there indefinitely." F.3d at 1258.

McCormick, 293

In determining domicile, "[c]ourts typically take into account a variety of factors indicating the extent of a particular party's ties to the purported domicile." Garcia Perez v. Santabella, 364 F.3d 348, 351 (1st Cir. 2004). "Factors frequently taken into account include:

7

the party's current residence; voter registration and voting practices; situs of personal and real property; location of brokerage and bank accounts; membership in ... associations; license place and of employment or business; [and]

driver's

automobile

registration;

payment of taxes."

13E Charles Alan Wright, Arthur R.

Miller & Edward H. Cooper, Federal Practice and Procedure § 3612 (3rd ed. 2009); see also McDonald, 13 F.Supp.2d at 1281 (listing factors). "No single factor is conclusive;

instead, a `totality of evidence' approach is necessary." McDonald, 13 F.Supp.2d at 1281. "An individual's in statements of intent ... also are when

considered

determining

domicile.

[And,]

subjective expressions of intent accord with objective facts, the subjective testimony bolsters the objective evidence." Id.

McNeal is adamant that she has considered, and still considers, residence. Macon, Georgia her one and permanent

Her subjective testimony is in accord with

8

the

objective

evidence:

She

has

a

Georgia

nursing

license and serves patients in Georgia; she has kept, and continues to keep, her personal property--including all of her furniture--at her Macon residence; she receives mail at her Macon address; she has a Georgia driver's license; she pays taxes in Georgia; she is registered to vote in Georgia; she maintains a Georgia bank account; she is a member of a Georgia church; and she now commutes between her job in Eufaula and her residence in Macon. To be sure, McNeal identified herself as a resident of Alabama in the June 2009 "Petition for Protection," and, in that same document, she referred to her exboyfriend's Eufaula address as "our" house and indicated that "both of our names are on" the lease. She also

admits that she is employed in Alabama and that she deposits account. her Alabama paychecks in an Alabama bank

While this evidence shows that, at the time

this lawsuit was filed on June 29, 2009, McNeal had some ties to Alabama, these ties were not, and are not, any

9

more permanent than the failed, short-lived romantic relationship upon which they were essentially based; her Alabama ties were not, and are not, sufficient to trump her significant and on-going objective and subjective permanent connections to Georgia. The court is convinced that McNeal did not intend to be, and has not been, anything more than a temporary resident of Alabama; she has not given up her permanent Georgia citizenship. Thus, the court finds that McNeal

was a citizen of Georgia at the time the complaint in this lawsuit was filed on June 29, 2009. Because

Workmaster was also a citizen of Georgia at that time, the parties were not "diverse" and this case is due to be remanded to state court.

***

Accordingly, it is the ORDER, JUDGMENT, and DECREE of the court that plaintiff Sylvia Yvonne McNeal's motion

10

for remand (doc. no. 10) is granted and that, pursuant to 28 U.S.C. § 1447(c), this cause is remanded to the Circuit Court of Barbour County, Alabama, for want of subject-matter jurisdiction. The clerk of the court is DIRECTED to take

appropriate steps to effect the remand. DONE, this the 30th day of November, 2009. /s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE