Binder v. The Prudential Insurance Company of America

Filing 34

ORDER dismissing case. Plaintiff's Complaint 1 is DISMISSED without prejudice. Plaintiff shall have up to and including December 13, 2013 to file an amended complaint that properly alleges this Court's subject matter jurisdiction. The Clerk is directed to terminate any pending motions as moot. The motions may be refiled once Plaintiff has established subject matter jurisdiction. Signed by Judge Sheri Polster Chappell on 11/27/2013. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
UCASTV, INC.,
Plaintiff,
v.

Case No: 2:13-cv-815-FtM-38UAM

BENTON BRANDON and HENRY
TRIPLER LARZELERE, JR.,
Defendants.
/
ORDER1
This matter comes before the Court sua sponte on a jurisdictional review of the
Complaint. (Doc. #1). The Plaintiff, Ucastv, Inc. pleads diversity jurisdiction. The amount
in controversy exceeds $75,000.00. Plaintiff, is a Florida Corporation with its principal
place of business in Fort Myers, Florida. The Complaint states that the Defendants
Benton Brandon and Henry Tripler Larzelere, Jr. are residents of Arkansas. (Doc. # 1, ¶¶
4, 7).
“Citizenship is equivalent to ‘domicile’ for purposes of diversity jurisdiction.” Turner
v. Pennsylvania Lumbermen’s Mut. Fire Ins. Co., 2007 WL 3104930, *3-4 (M.D. Fla. Oct.
22, 2007) (citing McCormick v. Aderholt, 293 F.3d 1254, 1257-58 (11th Cir. 2002). A
party's “domicile,” rather than his or her residence, is determinative of citizenship for

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diversity jurisdiction. Turner, 2007 WL 3104930 at *3-4 (citing Jagiella v. Jagiella, 647
F.2d 561, 563 (5th Cir. 1981); Combee v. Shell Oil Co., 615 F.2d 698, 700 (5th Cir. 1980).
“Domicile” is not necessarily synonymous with “residence,” and “one can reside in one
place, but be domiciled in another.” Turner, 2007 WL 3104930 at *3-4 (citing Mississippi
Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48, 109 S. Ct. 1597, 104 L. Ed. 2d 29
(1989)).
“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.” Sunseri v. Macro Cellular Partners, 412 F.3d 1247, 1249 (11th Cir.
2005) (quotations and citations omitted). Once a person establishes domicile, it continues
until the person establishes a new domicile, satisfying both the mental and physical
requirements of domicile in a new state. McDougald v. Jenson, 786 F.2d 1465, 1483
(11th Cir. 1986); Mas v. Perry, 489 F.2d 1396, 1399 (5th Cir. 1974). The party invoking
the court's jurisdiction bears the burden of proving, by a preponderance of the evidence,
facts supporting the existence of federal jurisdiction. McCormick, 293 F.3d at 1257. Thus
Lumbermen's has the burden of establishing plaintiffs' domicile in Georgia. The factors
considered in determining domicile include home ownership, driver's license, voting
registration, location of family, location of business and where taxes are paid. Turner,
2007 WL 3104930 at *3-4 (citing Jaisinghani v. Capital Cities/ABC, Inc., 973 F. Supp.
1450, 1453 (S.D. Fla. 1997)). While an individual's statements of intent are also
considered in determining domicile, these subjective expressions “are usually accorded
little weight when in conflict with the facts or when the question is close.” Jaisinghani,
973 F. Supp. at 1453 (citing Hendry v. Masonite Corp., 455 F.2d 955, 956 (5th Cir. 1972)).

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No single factor is conclusive; rather, the Court looks to the “totality of the evidence.”
Jones v. Law Firm of Hill and Ponton, 141 F. Supp. 2d 1349, 1355 (M.D. Fla. 2001).
The Complaint pleads residency for the Defendants Brandon and Larzelere
asserting the Defendants reside in Arkansas. Therefore, the Complaint fails to establish
the Defendants’ domicile for diversity of citizenship purposes. Thus, Plaintiff’s Complaint
will be dismissed without prejudice for leave to amend. Failure to comply with this Order
may result in the case being dismissed without further notice for failure to allege the
Court’s subject matter jurisdiction.
Accordingly, it is now
ORDERED:
(1) Plaintiff’s Complaint (Doc. #1) is DISMISSED without prejudice. Plaintiff shall
have up to and including December 13, 2013 to file an amended complaint that
properly alleges this Court’s subject matter jurisdiction.
(2) The Clerk is directed to terminate any pending motions as moot. The motions
may be refiled once Plaintiff has established subject matter jurisdiction.
DONE and ORDERED in Fort Myers, Florida this 27th day of November, 2013.

Copies: All Parties of Record

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