Burns v. Mercury Insurance Group et al
ORDER AND REASONS denying 5 Motion to Remand. Signed by Judge Jane Triche Milazzo. (ecm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MERCURY INSURANCE GROUP, ET AL
ORDER AND REASONS
Before the Court is Plaintiff’s Motion to Remand (Doc. 5).
following reasons, this Motion is DENIED.
Plaintiff Roi Burns alleges that he was injured in an October 5, 2015 car
accident when his vehicle was struck by Defendant Douglas Kmiotek. He filed
suit against Kmiotek and his insurer, Defendant Mercury Insurance Group, in
Louisiana state court on May 11, 2016. Defendants removed the matter to this
Court on diversity grounds on June 16, 2016. Plaintiff responded with the
instant Motion to Remand.
Generally, a defendant may remove a civil state court action to federal
court if the federal court has original jurisdiction over the action.1 The burden
is on the removing party to show “[t]hat federal jurisdiction exists and that
removal was proper.”2 When determining whether federal jurisdiction exists,
courts consider “[t]he claims in the state court petition as they existed at the
time of removal.”3 “In making a jurisdictional assessment, a federal court is
not limited to the pleadings; it may look to any record evidence, and may
receive affidavits, deposition testimony or live testimony concerning the facts
underlying the citizenship of the parties.”4 Removal statutes should be strictly
construed, and any doubt should be resolved in favor of remand.5
LAW AND ANALYSIS
In order for a matter to fall within the Court’s diversity jurisdiction, the
parties must be citizens of different states and the amount in controversy must
exceed $75,000.6 The parties do not appear to dispute that the amount in
controversy requirement is met. Likewise, the parties do not appear to dispute
that Plaintiff is a citizen of Louisiana and Defendant First Mercury is a citizen
of California. The parties do, however, dispute the citizenship of Defendant
Kmiotek. Plaintiff avers that Kmiotek is a citizen of Louisiana, rendering the
parties nondiverse. Defendants contend that he is a citizen of California.
To be a citizen of a state, a natural person must be both (1) a citizen of
the United States, and (2) a domiciliary of that state.7 It is undisputed that
28 U.S.C. § 1441(a).
Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002).
4 Coury v. Prot, 85 F.3d 244, 249 (5th Cir. 1996)
6 28 U.S.C. § 1332.
7 Id. at 248.
Kmiotek is a citizen of the United States; accordingly, the Court may proceed
directly to an analysis of whether he is a domiciliary of Louisiana. A change
in domicile require both physical presence at a new location and an intention
to remain there indefinitely.8 A person retains his domicile unless a new one
is acquired.9 A court may look to any number of factors to shed light on an
individual’s intent to establish domicile, including “the places where the
litigant exercises civil and political rights, pays taxes, owns real and personal
property, has driver’s and other licenses, maintains bank accounts, belongs to
clubs and churches, has places of business or employment, and maintains a
home for his family.”10
The only evidence presented by Plaintiff in support of his contention that
Kmiotek is a citizen of Louisiana is the New Orleans address he provided for
the police report.
In response, Kmiotek has presented an uncontroverted
affidavit indicating that his presence in Louisiana was temporary while he
attended Tulane University. He states that his permanent residence is his
family home in California, where he is registered to vote. His car is registered
in California, and he holds a California driver’s license.
In light of this
uncontroverted testimony, the Court does not find that Kmiotek intended to
establish domicile in Louisiana. Accordingly, Kmiotek is a citizen of California,
and the parties are diverse. The Motion to Remand is therefore denied.
For the foregoing reasons, Plaintiff’s Motion to Remand is DENIED.
10 Id. at 251.
New Orleans, Louisiana this 27th day of September, 2016.
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
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