Webster et al v. Sutton et al
MEMORANDUM OPINION AND ORDER, JUDGMENT and DECREE of the court that plfs Glenn and Tonganita Webster's 23 MOTION to Remand is granted and that pursuant to 28 USC 1447(c), this cause is remanded to the Circuit Court of Macon County, Alabam a; all other pending motions are left for resolution by the state court after remand; directing the clerk to take appropriate steps to effect the remand; this case is closed in this court. Signed by Honorable Judge Myron H. Thompson on 5/12/14. (Attachments: # 1 civil appeals checklist)(djy, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, EASTERN DIVISION
GLENN WEBSTER and
ALEXANDER SUTTON and
CIVIL ACTION NO.
OPINION AND ORDER
Plaintiffs Glenn and Tonganita Webster are citizens of
They brought this lawsuit in an Alabama state
court against two defendants, one of whom is Alexander
The defendants removed this case to federal court
under diversity-of-citizenship jurisdiction, 28 U.S.C.
§ 1332, representing that they were both citizens of
The Websters now argue that Sutton is, in fact,
a citizen of Alabama and that the case should therefore be
remanded back to state court.
For the reasons discussed
below, the Websters’ motion to remand will be granted.
I. FACTUAL BACKGROUND
Alexander Sutton was born in Alabama and has lived
here for much of his life.
In December 2010, when he was
18 years old and in his first year of college at the
University of Alabama, his parents moved to Georgia.
March 2011, he exchanged his Alabama driver’s license for
a Georgia driver’s license with his parents’ address on
His vehicle was registered in Georgia and had a
Georgia license plate.
In July 2013, between the incident giving rise to this
lawsuit and the filing of the lawsuit, Sutton was arrested
and prosecuted for driving under the influence.
Alabama and moved into his parents’ Georgia home.
August 21, 2013, when the lawsuit was filed, and September
30, 2013, when it was removed to federal court, he was
living with his parents in Georgia.
However, he testified
in deposition that, while he was living with his parents,
he was uncertain about whether he would stay in Georgia
and finally developed the intention to return to college
Sutton currently lives in Tuscaloosa and is enrolled
He provided a declaration stating that he has
no particular intent to remain in Alabama or to live in
any particular State after graduating college.
cannot secure a job after graduating, he intends to live
with his parents in Georgia.
At an on-the-record hearing on April 17, 2014, Sutton
offered further testimony that he grew up in Alabama, that
he attends college in Alabama, that his parents moved to
Georgia when he was a freshman in college, and that he
intends to move to any State in which he finds work after
finishing his education.
A defendant may remove to federal court a civil action
original jurisdiction over the action, including if that
jurisdiction is based on diversity of citizenship.
diversity jurisdiction, the parties must have complete
Stillwell v. Allstate Ins. Co., 663 F.3d 1329,
1332 (11th Cir. 2011).
That is, no defendant may be a
citizen of the same State as any plaintiff.
context of a case which was initially filed in state court
complete diversity at the time of removal.
Outdoors, Inc. v. Bloomberg, 552 F.3d 1290, 1294-95 (11th
jurisdiction,” Burns v. Windsor Ins. Co., 31 F.3d 1092,
1095 (11th Cir. 1994), federal trial courts must strictly
construe removal statutes, resolve all doubts in favor of
remand, and place the burden of establishing jurisdiction
on the defendants.
Miedema v. Maytag Corp., 450 F.3d
1322, 1328-30 (11th Cir. 2006); see also Rolling Greens
MHP, L.P. v. Comcast SCH Holdings, LLC., 374 F.3d 1020,
1022 (11th Cir. 2004) (“A party removing a case to federal
court based on diversity of citizenship bears the burden
of establishing the citizenship of the parties.”).
A person’s citizenship for the purposes of diversity
jurisdiction, also called his ‘domicile,’ is “the place of
returning whenever he is absent therefrom.”
(citation and quotation marks removed).
For a competent
adult, “a change of domicile requires a concurrent showing
of (1) physical presence at the new location with (2) an
intention to remain there indefinitely.”
Id. at 1258
(citation and quotation marks removed). The core question
in such an analysis is therefore a question of intent; a
person can live in many places without any intent to stay
There is no dispute that at the times when Sutton was
served with the state-court complaint and when the lawsuit
was removed to federal court, he was physically residing
However, “an individual’s mere residence in
a state” is not the same as his domicile.
Engram, 755 F.2d 1463, 1466 n.3 (11th Cir. 1985).
court must determine whether Sutton had the intent to
return to Alabama permanently, the intent to maintain
Georgia as his permanent home, or neither intent.
First, the court finds that Sutton did not have an
intent to return to Alabama to live there permanently.
the hearing, Sutton testified that he would be happy to
work in any State in which he secures employment after
In his declaration, he stated that he went back
to Alabama for only the purpose of completing his higher
Furthermore, he stated that, “when I graduate
I am willing to work in any State.”
Sutton Decl. (Doc.
No. 26-2) at ¶ 5.
At the time of removal of this lawsuit,
Sutton had no claim to property within Alabama, and he had
a Georgia driver’s license and car registration.
stated in his declaration, “I did not have any connection
with the State of Alabama other than the fact that some of
my friends lived in the State of Alabama.”
However, the court also finds that, at the time of
removal, Sutton did not hold the intent to live in Georgia
testified that he “was deciding whether he wanted to come
back [to Alabama] during” the relevant times.
26-1) at 14:5-6.
Furthermore, the court finds
that, at the time of removal, Sutton was willing to live
and work in any State.
His indecisive, ambiguous intent
did not amount to domiciliary intent with regard to the
State of Georgia.
Therefore, at the time of removal, Sutton had no
domiciliary intent with regard to any State.
circumstance, the court will look backward to his most
For, “[a] domicile once acquired is
presumed to continue until it is shown to have been
Mitchell v. United States, 88 U.S. 350, 353
The critical question then is, What was Sutton’s
most recent domicile?
Since minors are unable to form the requisite intent
to stay in a place indefinitely, they are assigned the
domicile of their parents. Mississippi Band of Choctaw
Indians v. Holyfield, 490 U.S. 30, 48 (1989).
time he was born through the time he started college,
Therefore, at the point that he started college, he had a
Alabama, and he was a minor.
Sutton argues that his domicile changed when his
parents moved to Georgia.
He interprets the caselaw as
articulating a rule similar to that for minors: that a
college student’s domicile will follow his parents’ so
long as they are providing financial support for him and
retaining disciplinary control over him. In support of
this approach, he points to the case of Mitchell v.
Mackey, 915 F.Supp. 388 (M.D. Ga. 1996) (Owens, J.). In
that case, Mitchell had been seriously injured while a
student in Georgia, where her parents had lived. After her
accident, her parents moved to a boat in Florida. Despite
the fact that Mitchell had never set foot on the boat, the
court found that she had the intent to reside permanently
with her parents after graduation and that her domicile
therefore changed with theirs.
However, Sutton’s interpretation of Mitchell and other
establishing an affirmative rule that college students
take the domicile of their parents, the cases articulate
a negative presumption: that courts are generally hesitant
to find that a student holds the intent to change domicile
merely because he attends a school in a different State.
See, e.g. Scoggins v. Pollock, 727 F.2d 1025, 1028 (11th
Cir. 1984) (student did not establish domiciliary intent
in a new State when she moved there for graduate school);
Mas v. Perry, 489 F.2d 1396, 1400 (5th Cir. 1974) (“Though
she testified that after her marriage she had no intention
of returning to her parents' home in Mississippi, Mrs. Mas
did not effect a change of domicile since she and Mr. Mas
requisite intention to remain there.”).* Mitchell did not
seek to transform the college-student rule into one that
mirrored the rule for minors.
That court grounded its
finding of the student’s domicile, not on the fact that
she was a student, but on her proven intent to live
indefinitely with her parents in Florida and her physical
elsewhere without her parents and their help.
Sutton displayed no such intent to live indefinitely
with his parents in Georgia.
While there is evidence that
he used his parents’ home as an address for important
* The Eleventh Circuit has adopted as precedent all
decisions of the former Fifth Circuit rendered prior to
October 1, 1981. Bonner v. City of Prichard, 661 F.2d
1206, 1207 (11th Cir. 1981)(en banc).
his driver’s license, and his car insurance, these
manifestations of a particular intent to live in Georgia.
College students often have several addresses over the
consistent address is more convenient.
Sutton offers, in passing, a final theory for how his
domicile changed from Alabama to Georgia.
At the time
that his parents moved to Georgia, he was 18 years old.
Since Alabama’s age of majority is 19, he was therefore a
minor under Alabama law.
1975 Ala. Code § 26-1-1(a).
Therefore, he argues that, under Alabama law, his domicile
changed with his parents when they moved to Georgia.
Cleckley v. Cleckley, 33 So.2d 338, 339 (Ala. 1948).
he moved to Georgia, he contends, he became a citizen of
that State and no longer had an Alabama domicile.
This argument presents a conundrum because, under
Georgia law and the facts presented in this case, Sutton
Unlike Alabama’s, Georgia’s age of majority is 18. Javetz
Nash, 261 S.E.2d 388, 388-89 (Ga. 1979).
both federal and Georgia law, an adult could acquire
Georgia citizenship only if he shows a concurrence of
actual residence and the intention to remain indefinitely,
McCormick, 293 F.3d at 1257-58; Kean v.
S.E.2d 463, 465 (Ga. App. 2008), and, as found earlier in
indefinitely with his parents in Georgia.
because Sutton was an adult under Georgia law when his
parents moved to Georgia, he did not acquire a Georgia
domicile by operation of law, with the result that, under
Georgia law, he was still a citizen of Alabama.
Under a full extension of Sutton’s argument, he lost
his Alabama domicile and became a citizen of Georgia under
Alabama law but did not acquire a Georgia domicile and
remained a citizen of Alabama under Georgia law.
if both States' age-of-majority laws are honored, he was
without a domicile or had two domiciles when his parents
moved to Georgia, the court will cut the Gordian Knot with
the well-established default removal principle that a
domicile once acquired is presumed to continue until it is
shown to have been changed.
Mitchell, 88 U.S. at 353.
Because the record is uncertain as to whether, and, if so,
how, Sutton’s domicile changed when his parents moved to
Georgia and because Alabama was Sutton’s last recognized
domicile, the court holds that Alabama, the State of his
last recognized domicile, is his current one.
The application here of this default principle is also
consistent with other well-established federal principles
First, there is the principle that all doubts
about removal should be resolved in favor of remand.
stand-off between Alabama's and George's age-of-majority
laws, this court will resolve the doubt created by those
laws by holding, consistent with the application of the
above default principle, that this case must be remanded.
Second, there is the principle that the party seeking
jurisdiction is present.
Applying this principle,
the court finds, in the face of the state-law standoff,
that Sutton has simply failed to establish that removal
jurisdiction is present and thus the court holds that
remand is warranted, a result that is again consistent
with the application of the above default principle.
The resolution of this case based on these wellestablished federal principles of removal is appropriate.
While Alabama and Georgia would have an interest as to
what substantive law should apply, neither State has
whether removal jurisdiction is appropriate. Rather, that
determination “is ... one uniquely of federal cognizance
Tompkins, 304 U.S. 64 (1938), do not obtain.”
determination must be made according to what “fits best
with the aims of the diversity statute and the national
character of the federal judicial system.” Rodriguez-Diaz
v. Sierra-Martinez, 853 F.2d 1027, 1033 (1st Cir. 1988).
In short, while state law, if helpful, may inform, the
issue is ultimately one of federal law.
Because Sutton and the Websters were all citizens of
Alabama when this case was removed and because, as a
result, there was not complete diversity of citizenship at
that time, this court lacks removal jurisdiction.
case must be remanded to state court.
Accordingly, it is the ORDER, JUDGMENT, and DECREE of
the court that plaintiffs Glenn and Tonganita Webster’s
motion to remand (Doc. No. 23) is granted and that,
pursuant to 28 U.S.C. § 1447(c), this cause is remanded to
the Circuit Court of Macon County, Alabama.
All other pending motions are left for resolution by
the state court after remand.
The clerk of the court is DIRECTED to take appropriate
steps to effect the remand.
This case is closed in this court.
DONE, this the 12th day of May, 2014.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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