Tallchief v. Hall et al

Filing 57

MEMORANDUM AND ORDER granting 51 Motion to Dismiss for Lack of Jurisdiction. Signed by Magistrate Judge Kenneth G. Gale on 5/15/2013. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MOSE H. TALLCHIEF,

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Plaintiff,
vs.
TRAVIS JOHN HADEN,
Defendant.

Case No. 12-1093-KGG

ORDER DISMISSING CASE FOR LACK OF JURISDICTION
This case comes before the Court on Defendant’s Motion to Dismiss (Doc.
51), which has been fully briefed and is ripe for decision. (Docs. 52, 55, 56).
Defendant’s motion is GRANTED because the Court find it lacks subject matter
jurisdiction.
I.

Facts and Procedural History
Plaintiff has brought the present negligence action alleging injuries sustained

in an automobile accident that occurred on June 23, 2010, in Cowley County,
Kansas. (Doc. 1.) Defendant moves to dismiss Plaintiff’s Complaint, arguing it is
deficient on its face because Plaintiff has failed to allege domicile or citizenship in
Oklahoma, which is necessary to establish the Court’s diversity jurisdiction.
Defendant also claims that the Plaintiff was factually a resident of Kansas at the
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time this action was filed, thus depriving the Court of subject-matter jurisdiction.
(See generally Docs. 51, 52.) The Plaintiff concedes that he was a Kansas
domiciliary at the time of the accident, but contends that his domicile changed to
Oklahoma prior to filing the Complaint. (See generally Doc. 55).
Plaintiff owns a residence in Wichita, Kansas, with his son. (Doc. 52, at 3.)
The house was purchased by Plaintiff’s deceased wife before they were married in
1977. (Doc. 55, at 3.)
Plaintiff lists a current address in Fairfax, Oklahoma. (Doc. 52, at 3.) He
inherited this property from his father in 1948. (Doc. 55, at 2.) The tax statements
for this property, however, are sent to Plaintiff at a Wichita, Kansas, P.O. Box
address. (Doc. 52, at 3.) When Plaintiff filed bankruptcy in October 2010 – which
he filed in Wichita, Kansas – he listed his Kansas, not his Oklahoma, property as
his homestead. (Doc. 52, at 5.) His bankruptcy documents also list various Kansas
bank accounts, but none in Oklahoma. (Doc. 52, at 6.)
Plaintiff contends that he lived in the Wichita home until his wife was placed
in a nursing home in 2005. (Doc. 55, at 4.) At that point, he began spending half
of his time in Oklahoma and the other half in Wichita. (Doc. 55, at 4.) Plaintiff
contends that he “always planned to move back to the family’s land in Oklahoma
and did so after the accident, before the suit was filed.” (Doc. 55, at 2.) He
estimates that since he got out of the hospital after the accident at issue, he has

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spent 60% of this time in Oklahoma and 40% in Wichita. (Doc. 52, at 4.) Two
trailers and a barn are located on the Oklahoma property; Plaintiff contends that he
lives in the larger trailer, which has a bedroom, kitchen, bathroom, office, and
laundry facilities. (Doc. 55, at 2, 3.) The larger trailer was moved to the property
in 2012 before the lawsuit was filed and contains various of Plaintiff’s personal
belongs. (Doc. 55, at 3.) Plaintiff’s three horses are also kept on the property
along with his dog. (Doc. 55, at 3.)
All of Plaintiff’s health care providers (including dental, vision, and
audiology) are in Wichita, Kansas. (Doc. 52, at 7.) This is true for both before and
after the accident at issue. (Doc. 52, at 7.) He continues to use only pharmacies in
Wichita, Kansas. (Doc. 52, at 8.) As of March 28, 2012 – less than two weeks
after the Complaint at issue was filed – Plaintiff listed his address as 3557 S. Osage
in Wichita, Kansas, along with a Kansas telephone number in a form he filled out
for Grene Vision Group, a Wichita eye doctor. (Doc. 52, at 9.) He did the same
with a form filled out for a cardiology appointment in Wichita in May 2012.
Plaintiff’s Medicare claims are processed by an insurance company that services
Iowa, Kansas, Missouri, and Nebraska – not Oklahoma. (Doc. 52, at 10.)
Plaintiff is registered to vote in Kansas and has been since at least April
1996. (Id., at 9.) He does, however, attend Osage Nation Agency and Osage
Mineral Council meetings in Oklahoma, and votes in tribal elections. (Doc. 55, at

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3.) Plaintiff was driving a vehicle with an “Osage Nation” Oklahoma license plate
at the time of the accident. (Doc. 55, at 3.)
II.

Motion to Dismiss Standards: FRCP 12(b)(1).
Federal courts are courts of limited jurisdiction, available to exercise their

power only when specifically authorized to do so. Lindstrom v. United States, 510
F.3d 1191, 1193 (10th Cir. 2007). Pursuant to the Federal Rules of Civil Procedure,
a party may move for dismissal based upon a court's “lack of jurisdiction over the
subject matter.” Fed.R.Civ.P. 12(b)(1). Plaintiff has the burden to show that the
Court has subject matter jurisdiction over his claims. U.S. ex rel Stone v.
Rockwell Intern. Corp., 282 F.3d 787, 798 (10th Cir. 2002).
The Tenth Circuit has noted that Rule 12(b)(1) motions may take on two
forms, either a “facial” attack or a “factual” attack. Paper, Allied–Indust.,
Chemical & Energy Workers Int'l Union v. Continental Carbon Co., 428 F.3d
1285, 1292 (10th Cir. 2005).
First, a facial attack on the complaint’s allegations as to
subject matter jurisdiction questions the sufficiency of
the complaint. Ohio Nat'l Life Ins. Co. v. United States,
922 F.2d 320, 325 (6th Cir. 1990). In reviewing a facial
attack on the complaint, a district court must accept the
allegations in the complaint as true. Id.
Second, a party may go beyond allegations
contained in the complaint and challenge the facts upon
which subject matter jurisdiction depends. Id. When
reviewing a factual attack on subject matter jurisdiction,
a district court may not presume the truthfulness of the
complaint's factual allegations. Id. A court has wide
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discretion to allow affidavits, other documents, and a
limited evidentiary hearing to resolve disputed
jurisdictional facts under Rule 12(b)(1). Id.; Wheeler v.
Hurdman, 825 F.2d 257, 259 n.5 (10th Cir.), cert. denied,
484 U.S. 986, 108 S.Ct. 503, 98 L.Ed.2d 501 (1987). In
such instances, a court's reference to evidence outside the
pleadings does not convert the motion to a Rule 56
motion. Wheeler, 825 F.2d at 259 n.5.
Smith v. Belcher, No. 11-3060, 2012 WL 137879, at *2 (D. Kan. Jan. 18, 2012)
(citing Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995)).
In the present matter, Defendant is making both a facial and factual attack on
Plaintiff’s claims. (Doc. 52, at 13-14.) Defendant contends that Plaintiff’s
Complaint is facially deficient because he “has failed to properly allege completely
diversity of citizenship, as Plaintiff has not alleged domicile or citizenship in
Oklahoma.” (Doc. 52, at 1.) Defendant further alleges that an examination of the
facts fails to “establish by a preponderance of evidence that [Plaintiff] is a citizen
of Oklahoma and not Kansas,” thus denying this Court of diversity jurisdiction.
(Id.)
III.

Plaintiff’s Complaint Fails on a Facial Basis.
The Court agrees with Defendant’s contention that the Complaint does not

facially allege that Plaintiff is a citizen of, or domiciled in, Oklahoma. (See Doc.
52, at 13.) Rather, the Complaint states that “is a resident of Oklahoma.” (Doc. 1,
at ¶ 1.) Plaintiff concedes that he “should have been more careful about preparing
the Complaint.” (Doc. 55, at 9.) Even so, Plaintiff contends that the language of
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the Complaint is superseded by the Pretrial Order, which states that “[s]ubject
matter jurisdiction is invoked under 28 U.S.C. 1332 and is disputed.”1 (Doc. 55, at
9; Doc. 50, at 2.)
The Court notes that the Complaint also fails to allege Defendant’s
citizenship. (See generally Doc. 1.) Based upon the arguments presented, the
parties appear to be acting under the assumption that Defendant is a citizen of
Kansas. Such an assumption is not, however, sufficient to establish the diversity of
the parties and, thus, the Court’s jurisdiction. Plaintiff’s Complaint should be
dismissed for this technical reason alone. Assuming for the purposes of this
motion that Defendant is a Kansas domiciliary, the Court will also address the
underlying substantive issue of whether there is sufficient evidence to establish that
Plaintiff was domiciled in Oklahoma at the time the present lawsuit was filed.
IV.

Plaintiff’s Complaint Fails on a Factual Basis.
Defendant’s factual attack on Plaintiff’s Complaint focuses on the issue of

domicile/citizenship vs. residence. The issue was addressed in this District in the
matter of Lloyd v. Loy, No. 01-2001-KHV, 2001 WL 950261 (D. Kan. July 23,
2001). In that case, the District Court was tasked with determining whether a
plaintiff, who had lived and worked in Kansas but who moved to Missouri in order

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28 U.S.C. §1332 is the statute requiring a diversity of citizenship or domicile.
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to create diversity jurisdiction for purposes of his lawsuit, had become a Missouri
domiciliary.
Diversity of citizenship is determined at the time the
complaint is filed, and it is based on the domicile of the
parties. See Stucky v. Bates, 2 F.Supp.2d 1434, 1437
(D.Kan.1998) (citing Freeport- McMoRan, Inc., v. K N
Energy, Inc., 498 U.S. 426, 428 (1991), and Crowley v.
Glaze, 710 F.2d 676, 678 (10th Cir. 1983)). To establish
domicile, a party must have physical presence in a
location and an intent to remain there indefinitely. See
Stucky, 2 F.Supp.2d at 1437 (citing Miss. Band of
Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989)).
The place where a person lives is assumed to be his
domicile unless the evidence establishes the contrary.
See District of Columbia v. Murphy, 314 U.S. 441, 455
(1941); see also State Farm Mut. Auto. Ins. Co. v. Dyer,
19 F.3d 514, 520 (10th Cir. 1994) (a person's residence is
his prima facie domicile). The law, however, ‘favor[s]
an established domicile over a newly acquired one.’
Stucky, 2 F.Supp.2d at 1437 (citing Bair v. Peck, 738
F.Supp. 1354, 1356 (D.Kan.1990)); see also Janis v.
Story & Assoc., 124 F.3d 216, 1997 WL 545569, at *3
(10th Cir. Sept. 4, 1997); Abercrombie v. Sigler, No.
87–2358–S, 1988 WL 212479, at *2 (D.Kan. Aug. 25,
1988).
. . . Because complete diversity is required,
diversity jurisdiction is not present if defendants and
plaintiff were domiciled in the same state. See Asselin v.
Shawnee Mission Med. Ctr., 894 F.Supp. 1479, 1484 (D.
Kan. 1995) (citing Knoll v. Knoll, 350 F.2d 407, 407
(10th Cir. 1965)). Plaintiff, however, contends that he
moved from Kansas to Missouri before he filed his
complaint. A change of domicile is valid even if done
for the purpose of creating diversity, Bank One, Texas,
N.A. v. Montle, 964 F.2d 48, 53 (1st Cir. 1992), and no
minimum period of residence is required. See Morris v.
Gilmer, 129 U.S. 315, 328 (1889). Plaintiff need not
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intend to remain permanently in his new domicile. See
Crowley, 710 F.2d at 678. It is enough to have a
‘floating intention’ to stay indefinitely and also have the
general desire to return to the former domicile at some
undetermined point of time. Id. It is not sufficient,
however, to have the existing intention to return upon the
happening of a reasonably foreseeable event. See Gates
v. Comm'r of Internal Revenue, 199 F.2d 291, 294 (10th
Cir. 1952).
...
. . . Where it appears that a party may have more
than one residence, the Court uses a “totality of
evidence” approach to ascertain the intended domicile.
See Cressler v. Neuenschwander, 930 F.Supp. 1458,
1460 (D. Kan.1996) (citing Hicks v. Brophy, 839
F.Supp. 948, 950–51 (D. Conn. 1993)). Factors which
the Court considers in determining a party's intent
include the following:
1. Whether or not an individual votes where he
claims domicile;
2. The manner in which an individual lives, taken
in connection with his station in life, i.e., whether
he rents or buys a home;
3. Whether his family and dependents have moved
to the new residence;
4. Whether an individual's belongings have been
moved to the new residence;
5. One's relationships with churches, clubs, and
investments in the new residence;
6. Whether or not a place of abode is retained in
the old state of residence;

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7. Whether or not investments in local property or
enterprise attach one to the former residence;
8. Whether one retains affiliations with
professional, religious and fraternal life of the
former community; and
9. What domicile is claimed for tax purposes.
Cressler, 930 F.Supp. at 1460. Statements of intent are
accorded minimal weight relative to these objective
factors. See Freeman v. Northwest Acceptance Corp.,
754 F.2d 553, 556 (5th Cir.1985).
Lloyd, 2001 WL 950261, at 2-3.
The Complaint at issue was filed on March 19, 2012. The Court’s analysis
will, therefore, be concerned with Plaintiff’s domicile and/or citizenship at that
time. Most of the facts alleged by the parties are uncontroverted, including the fact
that Plaintiff has always had residences in both Kansas and Oklahoma.
Unfortunately, a dearth of evidence has been presented relating to Plaintiff’s
domicile as of the date the Complaint was filed. Further, some of the evidence
provided to the Court relates to a specific time that does not necessary correlate to
the time frame during which Plaintiff is alleged to have changed his domicile to
Oklahoma. As such, absent specific evidence of a change in circumstances, the
Court can only surmise that facts alleged to exist prior to the accident remained the
same through the time Plaintiff is alleged to have changed his domicile to
Oklahoma. The Court will, therefore, analyze the entirety of the evidence

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presented in an effort to determine Plaintiff’s domicile – and intentions regarding
the issue – as of the date his Complaint was filed.
The parties agree that at the time of the accident in 2010 the Plaintiff was a
Kansas resident. His bankruptcy filing, his 2010 driver’s license and his voting
registration leave no room for doubt. The issue, then, is whether the Plaintiff has
presented evidence that his domicile changed between that time and the time this
action was filed in 2012. The Plaintiff bears the burden of establishing the change.
Plaintiff contends that he “always planned to move back to the family’s land
in Oklahoma and did so after the accident, before the suit was filed.” (Doc. 55, at
2.) There is, however, little objective evidence to establish the veracity of this selfserving statement. As stated above, “[s]tatements of intent are accorded minimal
weight relative to . . . objective factors” evidencing a party’s intent. Lloyd, 2001
WL 950261, at *3 (citing Freeman v. Northwest Acceptance Corp., 754 F.2d 553,
556 (5th Cir.1985)).
It is uncontroverted that Plaintiff lived in Wichita until his wife was placed
in a nursing home in 2005, after which time he began splitting his time between
Wichita and his residence in Oklahoma. It is important to note that Plaintiff did
not acquire the Oklahoma property in conjunction with his change of domicile.
Rather he has owned it since 1948 and he alleges to have been spending
approximately half of his time there at the time of the accident.

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Plaintiff estimates that since he got out of the hospital after the accident at
issue, he has spent 60% of this time in Oklahoma and 40% in Wichita. (Doc. 52, at
4.) The Court notes that a 50/50 split does not differ significantly from 60/40.
Without an effort by Plaintiff to specifically document or prove where his time has
been spent, the Court is not satisfied that this conclusory statement has significant
evidentiary value. Lloyd, 2001 WL 950261, at *3 (internal citation omitted).
In his brief, Plaintiff describes the trailer in which he lives on the Oklahoma
property, which apparently contains various of his personal belongings. Plaintiff
states that the trailer was moved to the property in 2012 before the lawsuit was
filed. This is the single objective thread tethering Plaintiff’s claim that his
domicile changed to any action on his part. The trailer is on property the plaintiff
already owned, has another trailer, and upon which he already resided on occasion.
This upgrade of conditions does not, in the face of the other facts, prove a change
of domicile.
Plaintiff also contends that his three horses and dog are also kept on the
property. However, there is no evidence as to when that began, or whether that
represented a change in pre-2012 arrangements.
While Plaintiff votes relating to Osage tribal issues in Oklahoma, there is no
evidence that this was a new development made in conjunction with an attempt to
change his domicile to Oklahoma. There is no evidence that Plaintiff had to

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complete any type of voting registration for the tribe at the time he contends to
have changed his domicile from Kansas to Oklahoma. Further, he has remained a
registered voter in Kansas since at least 2006 for the purposes of state, local, and
federal (non-tribal) elections. There is no evidence of any attempt by the Plaintiff
to register to vote in Oklahoma.
Finally, the Court notes that Plaintiff arrived at the deposition in an
automobile with an Oklahoma license plate from the Osage Nation. This was not a
change of status from the date of the accident, which was before he claims his
domicile changed. The Court has been presented with no evidence as to whether
Plaintiff historically registered a vehicle through the tribe while he lived in Wichita
or whether he changed the registration only after he made a conscious decision to
change his domicile to Oklahoma.
In Lloyd, the plaintiff’s change of voter registration and procurement of
Missouri vehicle tags were found to be insufficient “to overcome the presumption
of an established residence over a new one.” 2001 WL 950261, at *4. In the
matter before the Court, the only evidence supporting an alleged change of
domicile is Plaintiff’s self-serving statement that he started spending 10% more
time at his pre-existing Oklahoma residence prior to filing the Complaint, all the
while maintaining his Kansas residence. Aside from moving the second trailer to
the property, there is no evidence of objective changes to his life, routine, or status.

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To the contrary, Plaintiff’s billing address remained in Kansas, he continued seeing
health care professionals in Kansas, he continued using pharmacies in Kansas, and
his Medicare benefits were processed by the insurer for the territory in which
Kansas (not Oklahoma) is located.
As stated previously, “[t]he law . . . ‘favor[s] an established domicile over a
newly acquired one.’” Lloyd, 2001 WL 950261, at *2 (citing Stucky, 2 F.Supp.2d
at 1437; Janis, 124 F.3d 216; Abercrombie, 1988 WL 212479, at *2). Based on
the information presented to the Court, Plaintiff has not met his burden to establish
by a preponderance of the evidence facts supporting the exercise of diversity
jurisdiction. See Lloyd, 2001 WL 950261, at *2 (citing Marcotte v. State Farm
Fire & Cas. Co., 4 F.Supp.2d 1280 (D.Kan.1998) (failure to vote, pay utility or tax
bills, form professional, social or religious connections, buy property or move
personal items meant plaintiff had not established new residence); Callicrate v.
Farmland Indus., Inc., No. 93–1455–PEK, 1995 WL 463664, at *5 (D.Kan. July
31, 1995) (self-serving statements, driver's license, voter registration and sporadic
trips to state are not enough to overcome presumption of established residence
when majority of time was spent in other state with family)).
Defendant’s motion (Doc. 51) is, therefore, GRANTED. This action is
DISMISSED for lack of subject-matter jurisdiction.

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IT IS SO ORDERED.
Dated this 15th day of May, 2013, at Wichita, Kansas.
S/ KENNETH G. GALE

HON. KENNETH G. GALE
U.S. MAGISTRATE JUDGE

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