Lowery, III v. ACE American Insruance Company et al

Filing 85

ORDER: An evidentiary hearing is scheduled in this matter for 1/18/2019 at 10:00 a.m. in Courtroom 6. The hearing is limited to a determination of Shawn Williams' domicile at the time of removal. By 1/16/2019, the plaintiff and the defendants shall exchange lists of witnesses and exhibits to be offered at the evidentiary hearing. Shawn Williams shall be present at the hearing and shall be prepared to provide testimony. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 1/2/2019. (KAH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

SHELBY LOWERY, III

CIVIL ACTION

VERSUS
NO. 17-248-BAJ-RLB
ACE AMERICAN INSURANCE
COMPANY, ET AL.
ORDER
Before the Court is Plaintiff’s Motion to Remand (R. Doc. 77) filed on November 29,
2018. The motion is opposed. (R. Doc. 84).
Shelby Lowery, III (“Plaintiff”) initiated this action in the 19th Judicial District Court,
East Baton Rouge Parish, Louisiana on or about March 23, 2017. (R. Doc. 1-1 at 1-5). Plaintiff
seeks recovery for alleged personal injuries resulting from an automobile accident involving an
ambulance in which Plaintiff was a passenger and a vehicle driven by the defendant Shawn
Williams. Plaintiff alleges that he and Mr. Williams were both residents of the State of
Louisiana at the time the action was filed.
On April 21, 2017, Ace American Insurance Company and The Sherwin-Williams
Company removed the action, asserting that the Court has diversity jurisdiction pursuant to 28
U.S.C. § 1332. (R. Doc. 1). In relevant part, the removing defendants assert that at the time of
removal, Mr. Williams was a “resident citizen of Georgia,” and, accordingly, that there is
complete diversity between the parties. (R. Doc. 1 at 3-4).
On June 21, 2017, the removing defendants filed a statement by Mr. Williams providing,
among other things, that he moved from Baton Rouge, Louisiana to Atlanta, Georgia in February
of 2017, and that he did not “intend to return to Louisiana to live permanently,” that he intended

to enroll in a police academy in Gulfport, Mississippi, and that he intended to permanently move
to Gulfport, Mississippi after graduation from the police academy. (R. Doc. 15). Furthermore,
Mr. Williams represented in his discovery responses that he “lived” in Baton Rouge, Louisiana
from February 2016 through February 2017; in Atlanta, Georgia from February 2017 through
May 2017; and on a tug boat at sea off and on from March 2017 through November 2017. (R.
Doc. 84-1 at 5).
On March 20, 2018, Mr. Williams testified at his deposition that since May 2017 he has
resided in Baton Rouge, Louisiana. (R. Doc. 77-2 at 8). He also confirmed that he previously
lived in Georgia, but also indicated that his was prior to the accident in this case, and that he has
lived in Louisiana since that accident. (R. Doc. 77-2 at 11). The defense asserts that any
potential inconsistencies in the deposition testimony are a result of vague or confusing
questioning. (R. Doc. 84 at 1).
In addition, Mr. Williams was issued a Louisiana driver’s license on January 20, 2017,
approximately two months before this action was filed. (R. Doc. 77-2 at 97-98).
Plaintiff now seeks remand on the basis that the Court lacks complete diversity of
citizenship, and, therefore, subject matter jurisdiction pursuant to 28 U.S.C. § 1332. (R. Doc. 77).
In opposition, the defendants assert that Mr. Williams was a citizen of Georgia at the time of
removal, and that any post-removal change of citizenship is irrelevant. (R. Doc. 82). In an
additional statement, and in support of a finding that he was domiciled in Georgia at the time of
removal, Mr. Williams asserts that in March 2017 he sought to become a police officer with the
City of East Point, Georgia; that he opened a bank account in Atlanta, Georgia in May of 2017;
that he received a physical examination on May 25, 2017 in Hampton, Georgia related to his

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application to attend the Harrison County Law Enforcement Training Academy in Mississippi;
and that he withdrew the foregoing application on August 2017. (R. Doc. 84-2).
Having reviewed the record, the Court finds it appropriate to hold an evidentiary hearing
to develop the record and assess the credibility of Mr. Williams to determine his citizenship at
the time of removal. See Padilla-Mangual v. Pavia Hospital, 516 F.3d 29 (1st Cir. 2007); Core
VCT PLC, et al. v. Hensley, 59 F. Supp. 3d 123 (D.C. 2014). The sole issue to be determined at
the evidentiary hearing is Mr. Williams’ domicile (i.e., citizenship) at the time the petition was
filed in state court and at the time of removal. See St. Paul Mercury Indem. Co. v. Red Cab. Co.,
303 U.S. 283, 289-91 (1938); Gebbia v. Wal–Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir.
2000). The evidence to be submitted by the parties shall address the factors for determining
domicile enumerated by the Fifth Circuit. See Coury v. Prot, 85 F.3d 244, 250-51 (5th Cir.
1996).
IT IS ORDERED that an evidentiary hearing is scheduled in this matter for January 18,
2019 at 10:00 a.m. in Courtroom 6. The hearing is limited to a determination of Shawn
Williams’ domicile at the time of removal.
IT IS FURTHER ORDERED that by January 16, 2019, the plaintiff and the
defendants shall exchange lists of witnesses and exhibits to be offered at the evidentiary hearing.
IT IS FURTHER ORDERED that Shawn Williams shall be present at the hearing and
shall be prepared to provide testimony.
Signed in Baton Rouge, Louisiana, on January 2, 2019.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE

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