Branyan v. Southwest Airlines Co.

Filing 24

Judge Nathaniel M. Gorton: MEMORANDUM & ORDER entered denying 15 Motion to Remand; granting 21 Motion for Leave to File a Reply Brief; denying 22 Motion to Strike (Danieli, Chris)

United States District Court
District of Massachusetts
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CORIAN M. BRANYAN,
Plaintiff,
v.
SOUTHWEST AIRLINES CO.,
Defendant.

Civil Action No.
15-10076-NMG

MEMORANDUM & ORDER
GORTON, J.
This case involves various claims made by plaintiff Corian
Branyan (“Branyan”) against defendant Southwest Airlines Co.
(“Southwest”), for whom she was previously employed as a
customer service agent and flight attendant.

Pending before the

Court is plaintiff’s motion to remand the case to state court.
For the reasons that follow, the motion be will denied.
I.

Background
According to her complaint, Branyan resides in Plymouth

County within the Commonwealth of Massachusetts.

Southwest is a

Texas corporation with its principle place of business in
Dallas, Texas.
In July, 2013, Branyan suffered a work-related wrist injury
and was placed on paid leave.

Southwest continued to provide

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Branyan with paid benefits until its insurer denied her workers’
compensation claim in September, 2013.
Southwest then allegedly began harassing plaintiff and
demanding reimbursement for over $4,500 in benefits that it had
provided to her while she was on leave.

Southwest, inter alia,

purportedly took money out of Branyan’s “sick bank” account to
satisfy the debt and made repeated calls to Branyan in the
months after her claim was denied.

Branyan maintains that

Southwest’s actions caused her severe stress and negatively
affected her health and well-being.
In December, 2014, plaintiff filed this action in
Massachusetts Superior Court for Plymouth County and asserted
claims for 1) intentional infliction of emotional distress, 2)
negligent infliction of emotional distress, 3) invasion of the
right to privacy in violation of M.G.L. c. 223, § 1 and 4)
bullying, abuse and harassment in violation of M.G.L. § 151G,
§ 1(a).1
Southwest timely removed the case to this Court in January,
2015.

In its notice of removal, Southwest relied on diversity

of citizenship to establish federal court jurisdiction.

In

February, 2015, Branyan moved to remand the case to state court.

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The parties stipulated to the dismissal of Count IV in
February, 2015.
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Also pending but outside the scope of this Memorandum & Order is
Southwest’s motion to dismiss.
II.

Motion to Remand
A.

Legal Standard

Federal jurisdiction predicated on diversity of citizenship
requires that the case arise between “citizens of different
states” and have an amount in controversy that exceeds $75,000.2
28 U.S.C. § 1332(a).

Citizenship is determined by a person’s

domicile, which is itself established by showing that the
individual 1) is physically present in the state and 2) has an
intent to remain indefinitely. Garcia Perez v. Santaella, 364
F.3d 348, 350 (1st Cir. 2004).
The party relying on diversity jurisdiction must not only
establish domicile by a preponderance of the evidence but also
prove that diversity of citizenship existed at the time the suit
was filed. Id. at 350-51.
B.

Application

Branyan’s complaint clearly attempts to insulate her suit
from federal court by stating, in minimalist terms, that she
only resided in Massachusetts without declaring her citizenship
of, or domicile in, that state. See Bank One, Texas, N.A. v.
Montle, 964 F.2d 48, 53 (1st Cir. 1992) (“[C]itizenship or

2

Branyan’s motion to remand does not contest that the amount in
controversy is adequate.
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domicile, not residence, is the basis of subject matter
jurisdiction”).
In her motion to remand, Branyan proceeds to contend that
Southwest’s notice of removal fails to establish diversity and
is therefore defective.

Specifically, she argues at length that

Southwest’s notice of removal falsely avers that Branyan is a
citizen of Massachusetts, as opposed to merely being a resident.
That argument is, however, underwhelming.
Southwest has easily carried its burden of establishing
diversity of citizenship.

First, its notice of removal

appropriately relies on Branyan’s own admission that she resides
in Massachusetts. See Miller v. Grgurich, 763 F.2d 372, 373 (9th
Cir. 1985) (Kennedy, J.) (“The diversity upon which removal is
predicated ... should generally be determined from the face of
the complaint.”).

Her admission is important because courts

typically utilize current residence as a key consideration when
determining domicile. See, e.g., Garcia Perez, 364 F.3d at 351
(including “current residence” as first of many factors that
courts rely on in determining domicile); Lundquist v. Precision
Valley Aviation, Inc., 946 F.2d 8, 11 (1st Cir. 1991)
(“residence is highly relevant to the issue of domicile”);
Macone v. Nelson, 274 F. Supp. 2d 136, 140 (D.P.R. 2003)
(remarking that “place of residence is prima facie evidence of a
party’s domicile”). See also Valentin v. Hosp. Bella Vista, 254
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F.3d 358, 361 n.1 (1st Cir. 2001) (“emulating” district court’s
decision “pragmatically” to assume that plaintiff meant
citizenship when she said residency in complaint).
Moreover, Southwest submitted an affidavit which details
Branyan’s extensive connections to Massachusetts and undoubtedly
proves that she was domiciled in the Commonwealth at the time
she became employed by Southwest.

Such evidence raises a

presumption in favor of continuing to identify Massachusetts as
her domicile. Padilla-Mangual v. Pavia Hosp., 516 F.3d 29, 31
(1st Cir. 2008) (citations omitted).

Plaintiff makes no attempt

to identify or establish any other state as her domicile and,
instead, merely persists that Southwest has failed to establish
diversity.

Thus, Branyan does nothing to overcome the

presumption that she was, at the time she filed suit, domiciled
in Massachusetts.
Branyan also contends that the notice of removal
impermissibly failed to note that the action is not one of the
categories of cases rendered non-removable by 28 U.S.C. § 1445.
That argument is equally unavailing.

Quite simply, 28 U.S.C.

§ 1446, which governs the procedure for the removal of civil
actions, requires no such disclaimer in a defendant’s notice.
Accordingly, Branyan’s motion to remand will be denied.

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C.

Ancillary Motions

Also pending is 1) Branyan’s motion for leave to file a
reply brief and 2) Southwest’s motion to strike.

Branyan

originally filed her reply brief without leave of court,
contrary to local rule.

Shortly thereafter, Southwest moved to

strike the reply brief on the same day that Branyan sought leave
to re-file it with leave of court.
The Court discounts Branyan’s failure to seek leave of
court in light of her effort to correct the error a few days
later.

As such, her motion for leave will be allowed and

Southwest’s motion to strike will be denied.
That being said, Branyan’s reply brief raises serious, yet
completely unwarranted allegations of misconduct by defense
counsel.

Southwest did nothing improper by relying on a sworn

affidavit in support of its opposition to the motion to remand.
See PhoneDOCTORx, LLC v. Healthbridge Management, Inc., No. 12cv-12281-FDS, 2013 WL 474516, at *2 (D. Mass. Feb. 6, 2013).
Counsel for plaintiff is forewarned and admonished to avoid
making any further ad hominem attacks on defense counsel which
likely will result in the imposition of sanctions.

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ORDER
For the foregoing reasons,
1)

plaintiff’s motion to remand (Docket No. 15) is
DENIED;

2)

plaintiff’s motion for leave to file a reply brief
(Docket No. 21) is ALLOWED; and

3)

defendant’s motion to strike (Docket No. 22) is
DENIED.

So ordered.
_/s/ Nathaniel M. Gorton____
Nathaniel M. Gorton
United States District Judge
Dated March 17, 2015

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