Diversified Golf LLC v. Trans World Commercial & Equity LLC et al
Filing
33
ORDER granting 19 Motion to Compel; denying 21 Motion to Set Aside Default. Ordered by Judge Clay D. Land on 05/14/2012. (CGC)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
DIVERSIFIED GOLF LLC,
*
Plaintiff,
*
vs.
*
TRANS WORLD COMMERCIAL &
EQUITY, LLC, et al.,
*
CASE NO. 3:11-CV-44 (CDL)
*
Defendants.
*
O R D E R
Plaintiff
action
on
premised
Diversified
March
on
28
18,
Golf
2011.
U.S.C. §
(“Diversified”)
Subject
1332.
matter
Compl.
filed
this
jurisdiction
¶ 10,
ECF
No.
is
1.
Defendant Jane Boyles (“Boyles”) failed to answer or otherwise
appear, and the Clerk entered default against her.
then entered a default judgment against Boyles.
sought
to
depose
Boyles
during
post-judgment
The Court
Diversified
discovery,
but
Boyles failed to appear for her deposition and also failed to
produce requested documents, and Diversified filed a Motion to
Compel (ECF No. 19).
In response, Boyles filed a Motion to Set
Aside Default Judgment (ECF No. 21), contending that the Court
lacks
subject
matter
jurisdiction
over
this
action
because
Diversified and Boyles are both citizens of Georgia, so subject
matter jurisdiction cannot be based on 28 U.S.C. § 1332.
For
the reasons set forth below, the Court concludes that Boyles is
a citizen of South Carolina, not Georgia.
Therefore, the Court
denies Boyles’s Motion to Set Aside Default Judgment (ECF No.
21).
19)
The Court grants Diversified’s Motion to Compel (ECF No.
and
orders
Boyles
to
respond
to
Diversified’s
document
requests and to appear for her post-judgment deposition.
SUBJECT MATTER JURISDICTION STANDARD
Boyles claims that the district court lacked subject-matter
jurisdiction
over
the
present
action
because
there
was
not
complete diversity between the parties at the time the Complaint
was filed.
diversity
Complete diversity requires that no defendant in a
action
plaintiff.
be
a
citizen
of
the
same
state
as
any
28 U.S.C. § 1332(a)(1); MacGinnitie v. Hobbs Grp.,
LLC, 420 F.3d 1234, 1239 (11th Cir. 2005).
Citizenship for
diversity purposes is determined at the time the suit is filed.
MacGinnitie, 420 F.3d at 1239.
Where
the plaintiff asserts
diversity, it is the plaintiff’s burden to prove that there is
diversity.
King v. Cessna Aircraft Co., 505 F.3d 1160, 1171
(11th Cir. 2007).
For
purposes
equivalent
to
of
diversity
‘domicile.’”
jurisdiction,
McCormick
v.
citizenship
Aderholt,
293
“is
F.3d
1254, 1257 (11th Cir. 2002) (per curiam).
“A person’s domicile
is
permanent
the
place
of
his
true,
fixed,
and
home
and
principal establishment, and to which he has the intention of
returning whenever he is absent therefrom. . . .”
2
Id. at 1257-
58 (alteration in original) (internal quotation marks omitted).
A change of domicile requires “(1) physical presence at the new
location [and] (2) an intention to remain there indefinitely.”
Id. at 1258 (internal quotation marks omitted).
FACTUAL BACKGROUND
Diversified filed its Complaint on March 18, 2011.
generally
Compl.
Boyles
was
personally
served
See
with
the
Complaint and Summons on March 22, 2011 at 2807 Wagener Road,
Aiken, South Carolina.
Ex.
A,
Summons
&
Aff.
Pl.’s Resp. to Def.’s Mot. to Set Aside
of
Service,
ECF
No.
26-1.
Boyles
contends, however, that she “has been a proud and active citizen
of the State of Georgia since 1994” and was a citizen of Georgia
on March 18, 2011.
2, ECF No. 21.
Def. Boyles’s Resp. to Pl.’s Mot. to Compel
In support of this assertion, Boyles points to
the following evidence:
(1)
Georgia driver’s license for Jane Boyles, which lists an
address of 650 Crown Point Drive, Martinez, Georgia. Def.
Boyles’s Am. Resp. to Pl.’s Mot. to Compel Ex. CD1, Georgia
Driver’s License, ECF No. 22-2.
The driver’s license was
issued on January 13, 2010 and has an expiration date of
January 18, 2014. Id.
(2)
Georgia real estate license for Jane Boyles, which was
originally issued in 2002 and contains an “end of renewal”
date of January 31, 2015. Def. Boyles’s Am. Resp. to Pl.’s
Mot. to Compel Ex. CD2, Georgia Real Estate License, ECF
No. 22-3.
(3)
Medicare Summary Notice for Jane Boyles dated May 13, 2010,
which lists an address of 650 Crown Point Drive, Martinez,
Georgia.
Def. Boyles’s Am. Resp. to Pl.’s Mot. to Compel
Ex. CD3, Medicare Summary Notice, ECF No. 22-4.
3
(4)
Social Security Administration
“Important
Information”
dated November 28, 2011 and addressed to Jane Boyles at 650
Crown Point Drive, Martinez, Georgia.
Def. Boyles’s Am.
Resp. to Pl.’s Mot. to Compel Ex. CD4, Social Security
Administration Notice, ECF No. 22-5.
(5)
2009 and 2010 Individual Federal Tax Returns for Jane
Boyles, which list her address as 650 Crown Point Drive,
Martinez, Georgia.
Def. Boyles’s Am. Resp. to Pl.’s Mot.
to Compel Exs. CD6-CD7, 2009 & 2010 U.S. Individual Tax
Returns, ECF Nos. 22-7, 22-8.
(6)
Georgia Motor Vehicle Registration for Jane Boyles with an
issue date of January 18, 2011 and an expiration date of
January 18, 2012, which lists her address as 650 Crown
Point Drive, Martinez, Georgia. Def. Boyles’s Am. Resp. to
Pl.’s Mot. to Compel Ex. CD8, State of Georgia Motor
Vehicle Registration, ECF No. 22-9.
(7)
Georgia Voter History for Jane Boyles dated December 13,
2011, which states that Boyles’s voter status is “active,”
lists an address of 608 Crown Point Drive, Martinez,
Georgia and states that Boyles last voted in the 2010
general election. Def. Boyles’s Am. Resp. to Pl.’s Mot. to
Compel Ex. CD9, Georgia Voter History, ECF No. 22-10.
Diversified
Carolina.
asserts
that
Boyles
is
a
citizen
of
South
In support of this assertion, Diversified points to
the following evidence:
(1)
Boyles was personally served with the Complaint and Summons
on March 22, 2011 at a residence located at 2807 Wagener
Road, Aiken, South Carolina, 29801.
Aff. of Service, ECF
No. 6 at 3 of 3; Pl.’s Resp. to Def.’s Mot. to Set Aside
Ex. A, Summons & Aff. of Service, ECF No. 26-1.
The
property is owned by Pansy Moyer, who is Boyles’s mother,
and Boyles rents the house from her. Pl.’s Resp. to Def.’s
Mot. to Set Aside Ex. B, Greene Decl. ¶ 4, ECF No. 26-2;
Green Decl. Ex. B-1, Aiken County Ownership Information for
2807 Wagener Road, ECF No. 26-3; Pl.’s Resp. to Def.’s Mot.
to Set Aside Ex. F, Curry Dep. 73:8-16, ECF No. 26-19
[hereinafter Curry Dep. I].
Boyles’s parents, Pansy and
James Moyer, live nearby at 2811 Wagener Road.
Greene
Decl. ¶ 5; Curry Dep. I 73:8-16.
4
(2)
Boyles has, in several documents filed with the Court,
listed her mailing address as 4115 Columbia Road, Suite 5,
Box 232, Martinez, Georgia. E.g., Def. Boyles’s Am. Resp.
to Pl.’s Mot. to Compel 2, ECF No. 22. The address belongs
to a UPS store. Greene Decl. ¶ 6. Mail sent by the Court
to
Boyles
at
that
address
has
been
returned
as
undeliverable.
Returned Mail, ECF No. 25; Returned Mail,
ECF No. 27.
(3)
Boyles represented to the attorney who represented her in
the real estate transaction at issue in this lawsuit that
Boyles lived in South Carolina. Pl’s Resp. to Def.’s Mot.
to Set Aside Ex. H, Tarrer Dep. 26:2-25, ECF No. 26-21.
(4)
Boyles opened a Bank of America checking account for her
company, Trans World Commercial & Equity; she used the
address of 2807 Wagener Road, Aiken, South Carolina.
Greene Decl. ¶ 7; Greene Decl. Ex. B-4, Bank Statement for
Trans World Commercial & Equity, Inc., ECF No. 26-6; Greene
Decl. Ex. B-5, Signature Card for Trans World Commercial &
Equity, Inc. Bank Account, ECF No. 26-7.
(5)
Boyles opened a Bank of America checking account for
another company, Renaissance Walk, LLC; she used the
address of 2807 Wagener Road, Aiken, South Carolina.
Greene Decl. ¶ 8; Greene Decl. Ex. B-7, Bank Statement for
Renaissance Walk, ECF No. 26-9; Greene Decl. Ex. B-8,
Signature Card for Renaissance Walk Bank Account, ECF No.
26-10.
(6)
Boyles maintains an active
license. Greene Decl. ¶ 9.
(7)
Boyles received Diversified’s Motion to Compel via Federal
Express at 2807 Wagener Road, Aiken, South Carolina.
Greene Decl. ¶ 11; Greene Decl. Ex. B-13 at 2, FedEx
Tracking Update, ECF No. 26-15.
Diversified
also
points
out
South
that
Carolina
most
of
real
the
estate
documents
Boyles relies on in support of her contention that she is a
Georgia
citizen
list
Martinez, Georgia.
her
address
as
650
Crown
Point
Drive,
Boyles contends that she “lives with Sidney
Curry” at that address.
Def. Boyles’s Reply in Supp. of Mot. to
5
Set Aside Default Judgment 3, ECF No. 31.
In support of this
assertion, Boyles points to Curry’s deposition testimony.
Id.
The cited testimony, however, does not support the assertion
that Boyles lives with Curry at 650 Crown Point Drive.
Def.
Boyles’s Reply in Supp. of Mot. to Set Aside Default Judgment
Ex. CD15, Curry Dep. 15:9-16:11, ECF No. 31-3 [hereinafter Curry
Dep. II] (stating that Curry had a “personal relationship” with
Boyles and that Curry rented a townhouse located at 608 Crown
Point Drive to Boyles).
Curry testified that Boyles does not
live with him at 650 Crown Point Drive.
15; Curry Dep. I 91:25-92:2.
Curry Dep. II 16: 14-
Rather, he testified that she
lives on Wagener Road in Aiken, South Carolina.
20:4-18.
Boyles
did
rent
townhouse
was
Georgia.
Curry
Dep.
at
located
a
608
II
townhouse
Crown
from
Point
15:24-16:19.
17:6.
Curry,
Drive,
Boyles
townhouse “four or five years” before 2011.
Curry Dep. I
and
the
Martinez,
vacated
the
Curry Dep. I 16:20-
Boyles does use Curry’s address, 650 Crown Point Drive,
as a “drop box” for mail, and Curry forwards the mail to her.
Id. 55:11-13.
DISCUSSION
In
courts
determining
generally
“driver[’]s
an
consider
license,
registration,
individual’s
medical
tax
a
place
variety
returns,
records,
6
of
banking
utility
of
domicile,
facts,
including
statements,
and
the
phone
voter
bills,
employment
records,
and
vehicle
registrations.”
Sunseri
v.
Macro Cellular Partners, 412 F.3d 1247, 1249 (11th Cir. 2005).
“Courts generally give little weight to a party’s profession of
domicile; they do so because these declarations are often selfserving.”
Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d
1330, 1342 (11th Cir. 2011).
In
this
case,
Boyles
pointed
the
Court
to
a
driver’s
license, a Medicare summary notice, a Social Security notice,
two
individual
registration.
federal
tax
returns
and
a
motor
vehicle
As discussed above, all of these documents list
Boyles’s address as 650 Crown Point Drive, Martinez, Georgia.
According to Curry, the owner and resident of the residence at
650 Crown Point Drive, Boyles does not live there and did not
live
there
when
Diversified’s
Complaint
was
filed.
Rather,
Boyles merely uses the address as a “drop box” for mail, and
Curry forwards the mail to her.
Court
therefore
concludes
that
Curry Dep. I 55:11-13.
none
of
these
establishes that Boyles is a citizen of Georgia.
The
documents
Boyles also
pointed the Court to a Georgia voter history document.
This
document, which lists an old address where Boyles has not lived
in several years, likewise does not establish that Boyles is a
Georgia citizen.
The
remaining
evidence,
submitted
by
Diversified,
shows
that Boyles is a South Carolina citizen and was at the time of
7
the filing of the Complaint in this action.
Boyles was served
with the Complaint and Summons in South Carolina, and she also
received
Diversified’s
Motion
to
Compel
in
South
Carolina.
Boyles opened bank accounts for two of her businesses in South
Carolina, using her South Carolina address.
Boyles’s attorney
and her friend, Curry, testified that Boyles lives in South
Carolina.
Based on all of the evidence, the Court concludes
that Boyles is a South Carolina citizen.
at
1249
(affirming
finding
mortgage
documents
listing
residence,
returns,
records,
despite
of
evidence
banking
and
of
vehicle registrations).
phone
California
California
domicile
as
based
party’s
Nevada
driver’s
voter
statements,
utility
Cf. Sunseri, 412 F.3d
registration,
bills,
employment
on
primary
license,
tax
medical
records,
and
Boyles’s Motion to Set Aside Default
Judgment (ECF No. 21) is therefore denied, and Diversified’s
Motion to Compel (ECF No. 19) is granted.
RELIEF GRANTED
Boyles shall produce documents in response to Diversified’s
document requests by June 8, 2012.
for
a
time,
post-judgment
date
counsel.
deposition
and
place
Boyles
is
of
also
the
Boyles is ordered to appear
upon
receiving
deposition
ordered
to
notice
of
the
from
Diversified’s
provide
Diversified’s
counsel with a valid telephone number and email address where
she may be reached so that counsel for Diversified can arrange a
8
mutually convenient time and date for the deposition.
Boyles
fail
obligations
contempt.
to
comply
and
this
with
Order,
her
the
post-judgment
Court
will
hold
Should
discovery
Boyles
in
See Fed. R. Civ. P. 37(b)(2)(A)(vii).
In connection with its Motion to Compel, Diversified sought
sanctions
under
Federal
Rule
of
Civil
Procedure
37.
Under
Federal Rule of Civil Procedure 37(a)(5), if a motion to compel
discovery responses is granted, the Court “must, after giving an
opportunity to be heard, require the party . . . whose conduct
necessitated the motion . . . to pay the movant’s reasonable
expenses
incurred
in
fees.”
Fed.
Civ.
R.
making
P.
the
motion,
37(a)(5);
including
accord
Fed.
attorney’s
R.
Civ.
P.
37(d)(3) (stating that a court “must require” the party failing
to attend a deposition or respond to a request for inspection
“to
pay
the
reasonable
expenses,
caused by the failure”).
including
attorney’s
fees,
Within fourteen (14) days of today’s
Order, Diversified shall provide the Court with evidence of the
expenses incurred in making the Motion to Compel.
Boyles shall
have fourteen (14) days to respond and explain why she should
not be sanctioned.
CONCLUSION
As
Default
previously
Judgment
explained,
(ECF
No.
Boyles’s
21)
9
is
Motion
denied,
and
to
Set
Aside
Diversified’s
Motion to Compel (ECF No. 19) is granted.
Failure to comply
with today’s Order shall subject Boyles to contempt proceedings.
The Clerk is directed to send a copy of this Order to
Boyles’s
Martinez,
Georgia
electronic filing system.
to
the
Martinez,
address
listed
in
the
Court’s
Given that some of the Court’s mail
Georgia
address
has
been
returned
as
undeliverable, the Clerk shall also send a copy of this Order to
Boyles at 2807 Wagener Road, Aiken, South Carolina, 29801.
IT IS SO ORDERED, this 14th day of May, 2012.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE
10
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