McGinnis et al v. Rooks et al

Filing 3

NOTICE and ORDER: Defendant Cherokee Insurance Company shall file a memorandum and supporting evidence concerning subject matter jurisdiction within ten (10) days of the date of this Notice and Order, and that plaintiffs Kyron McGinnis and Jermone J ackson shall either file a memorandum and supporting evidence regarding subject matter jurisdiction or a Motion to Remand for lack of subject matter jurisdiction within ten (10) days after the filing of Defendants memorandum. Memorandum due by 6/22/2018. Signed by Magistrate Judge Erin Wilder-Doomes on 06/12/2018. (ELW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

KYRON MCGINNIS AND
JERMONE JACKSON

CIVIL ACTION

VERSUS

NO. 18-612-SDD-EWD

RANDALL ROOKS,
ET AL
NOTICE AND ORDER
Before the Court is a Notice of Removal filed by defendant Cherokee Insurance Company
(“Cherokee”).1 Cherokee represents that its co-defendants, Royal Trucking Company and Randall
Rooks, who have not yet been served, have consented to the removal (without waiving formal
service).2 Cherokee removed this matter from state court on June 6, 2018, asserting that this Court
has diversity jurisdiction pursuant to 28 U.S.C. § 1332.3 The Notice of Removal makes the
following allegations regarding the citizenship of the parties:
8.
Despite the allegations of Plaintiffs’ Petition that plaintiff, Kyron
McGinnis, is a resident of the State of Georgia, the true facts reveal that
Kyron McGinnis is a resident of the State of Louisiana
9.
While the police report notes that McGinnis’s driver’s license was issued
by the State of Georgia, the report also notes that the area code of his
telephone number is for the New Orleans area (504). See State of
Louisiana Uniform Motor Vehicle Traffic Crash Report, attached hereto
as Exhibit “D.”

1

R. Doc. 1.
R. Doc. 1, ¶¶ 3-4.
3
R. Doc. 1, ¶ 20.
2

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10.
Plaintiff McGinnis’s medical records demonstrate that he has received
care and/or treatment repeatedly and constantly in the New Orleans area
from the time of July 14, 2017 accident through the present. In fact, on
July 19, 2017, four days after the subject accident, McGinnis was initially
seen at LA Health Solutions and listed his New Orleans address. See
attached Exhibit “E”, Patient Intake Form from LA Health Solutions.
11.
Plaintiff has continued to treat at LA Health Solutions through at least
March 16, 2018. See attached Exhibit “F”, bill from LA Health Solutions.
All of plaintiff’s medical treatment from the date of the accident has been
in the State of Louisiana.
12.
Additionally, when McGinnis’s vehicle was appraised following the
subject accident, he provided his New Orleans address. See attached
Exhibit “G”, Bayou Appraisal Service, Inc., appraisal report.
13.
Based upon the New Orleans area address given by McGinnis to his
medical providers, his New Orleans area telephone number, and his
continued and constant treatment in New Orleans over the period of
approximately half a year, it is clear that Plaintiff Kyron McGinnis is not,
in fact, a resident and domiciliary of Georgia, as claimed in his Petition.
Rather, he is resides in New Orleans. A person’s residence is prima facie
his domicile. Stine v. Moore, 213 F.2d 446, 448 (5th Cir. 1954).
14.
Plaintiff Kyron McGinnis is a resident and domiciliary of the State of
Louisiana, as discussed above.
15.
Plaintiff Jermone Jackson is a resident of the State of Louisiana. See copy
of Plaintiff’s Petition for Damages, which is attached hereto as Exhibit
“A.”

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Proper information regarding the citizenship of all parties is necessary to establish the
Court’s diversity jurisdiction, as well as to make the determination required under 28 U.S.C. §
1441 regarding whether the case was properly removed to this Court. In the Notice of Removal,
citizenship has been adequately alleged as to all of the defendants.4 However, it is not clear from
the Notice of Removal that complete diversity exists because citizenship has not been adequately
alleged with respect to either of the plaintiffs.
The Notice of Removal asserts that defendant Rooks is a citizen of the State of Georgia.5
The plaintiffs’ Petition alleges that plaintiff Kyron McGinnis (“McGinnis”) is also a resident of,
“and domiciled in,” the State of Georgia, which appears to defeat complete diversity.6 However,
Cherokee claims that “the true facts reveal” that McGinnis “is a resident and domiciliary of the
State of Louisiana.”7 The purported facts upon which Cherokee relies for this assertion include
that McGinnis provided a telephone number with a New Orleans-based area code (i.e., 504) to the
police at the time of the July 2017 accident giving rise to the lawsuit, McGinnis provided a New
Orleans-based address to some of his medical providers and the appraisal service that appraised
his damaged vehicle, and McGinnis received treatment at New Orleans-area hospitals from the
date of the July 2017 accident until approximately March 2018.8
The Fifth Circuit has explained that, “For diversity purposes, citizenship means domicile;
mere residence in the State is not sufficient.” Mas v. Perry, 489 F.2d 1396, 1399 (5th Cir. 1974)
(citations omitted). Furthermore, “[f]or adults, domicile is established by physical presence in a

4

28 U.S.C. §1332(a) also requires that the amount in controversy exceed the sum of $75,000, exclusive of interest
and costs. The pleadings and attached documentation indicate that the amount in controversy requirement is met as to
each plaintiff. R. Doc. 1, ¶ 6, R. Doc. 1-5, and R. Doc. 1-6.
5
R. Doc. 1, ¶ 5.
6
R. Doc. 1-4, p. 1.
7
R. Doc. 1, ¶¶ 8, 14, R. Doc. 1-4, p. 1.
8
R. Doc. 1, ¶¶ 9-12.

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place in connection with a certain state of mind concerning one’s intent to remain there.” White
v. I.N.S., 75 F.3d 213, 215 (5th Cir. 1996) (citing Mississippi Band of Choctaw Indians v. Holyfield,
490 U.S. 30, 48, 109 S.Ct. 1597, 1608, 104 L.Ed.2d 29 (1989)). Thus, to properly allege the
citizenship of an individual, a party must identify the individual’s domicile.
Cherokee’s evidence that McGinnis used/is using a New Orleans-based telephone number,
residence, and medical providers for less than one year does not conclusively establish plaintiff
McGinnis’s intent to remain in Louisiana so as to be considered a Louisiana domiciliary. Indeed,
Cherokee admits that McGinnis claims to be a Georgia resident in his Petition and provided a
Georgia-issued driver’s license to the police.9
Likewise, Cherokee’s Notice of Removal does not adequately identify the citizenship of
plaintiff Jermone Jackson (“Jackson”) because it alleges that Jackson “is a resident of the State of
Louisiana.”10 As explained above, the citizenship of an individual is based upon the individual’s
domicile, not mere residence.
Accordingly,
IT IS HEREBY ORDERED that Defendant Cherokee Insurance Company shall file a
memorandum and supporting evidence concerning subject matter jurisdiction within ten (10) days
of the date of this Notice and Order, and that plaintiffs Kyron McGinnis and Jermone Jackson shall
either file a memorandum and supporting evidence regarding subject matter jurisdiction or a
Motion to Remand for lack of subject matter jurisdiction within ten (10) days after the filing of
Defendant’s memorandum. The supplemental memoranda shall be limited to ten (10) pages and
shall specifically address whether there is diversity jurisdiction under 28 U.S.C. § 1332. Once the

9

R. Doc. 1, ¶¶ 8-9, R. Doc. 1-7.
R. Doc. 1, ¶ 15.

10

4

Court has reviewed the supplemental memoranda, the Court will either allow the case to proceed
if jurisdiction is present or address the Motion to Remand filed by the plaintiffs.
Signed in Baton Rouge, Louisiana, on June 12, 2018 .

S
ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE

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