Duff v. Missbach et al
Filing
65
ORDER denying 44 defendants' Motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction. Signed by District Judge George Caram Steeh. (MBea)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DEREK P. DUFF,
Plaintiff,
Case No. 17-CV-13930
HON. GEORGE CARAM STEEH
vs.
FCA US, LLC and
CARL J. MISSBACH,
Defendants.
_____________________/
ORDER DENYING DEFENDANTS’ MOTION TO DISMISS
PURSUANT TO FED. R. CIV. P. 12(b)(1) FOR LACK
OF SUBJECT MATTER JURISDICTION (ECF No. 44)
In this diversity action, Plaintiff Derek Duff has brought a negligence
claim against Defendants FCA US, LLC (“FCA”) and Carl Missbach
(“Defendants”) arising out of injuries Duff sustained in a motor vehicle
accident on June 17, 2015, while he was working to test Chrysler vehicles
in Aurora, Colorado. Plaintiff alleges Missbach, an FCA employee,
negligently struck him while driving a 2015 Jeep Cherokee Laredo. Now
before the court is Defendants’ motion to dismiss for lack of subject matter
jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1).
Defendants argue Duff was a citizen of Michigan at the time the lawsuit
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was filed; thus, they claim there is no diversity jurisdiction. Because Duff
has established that at the time this lawsuit was filed, he was a citizen of
Maine, his childhood home where he had resided for 26 of his 27 years,
and where he was residing with his parents in order to treat for his serious
injuries and to receive daily living assistance, diversity jurisdiction exists
pursuant to 28 U.S.C. § 1332, and Defendants’ motion shall be denied.
I. Factual Background
Duff was born in Bangor, Maine, where he grew up and attended high
school. He then attended the University of Maine at Orono. After
graduating with a bachelor’s degree in mechanical engineering, he
accepted a position with IAV and moved to Michigan for his employment in
September, 2014. He obtained a Michigan driver’s license and Michigan
no-fault insurance on his automobile, and leased an apartment for one
year. After living in Michigan for ten months, he was injured on the job
while working in Colorado on June 17, 2015. After in-patient hospitalization
and rehabilitation in Denver, Colorado, Duff moved back to Maine, where
he continues to live with his parents at their home, and who provide him
with care and support as he attempts to recover from his severe injury to
his leg.
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To date, Duff requires daily living assistance and cannot live
independently. Upon his return to Maine, Duff’s father and brother-in-law
cleaned out his Michigan apartment and brought his personal possessions
back to Maine. He did not renew his apartment lease. Following his
accident, Duff has undergone 18 surgeries to save his leg, his most recent
one involved implantation of a biological knee joint from a cadaver donor.
While Duff’s dream is to relocate to Arizona, or a similar climate, which
would be more comfortable for him given his injuries, for the foreseeable
future and until he is able to live on his own, he intends to reside with his
parents, as he has for the last four years.
The only connection Duff continues to maintain to Michigan is that he
still has a Michigan’s driver’s license and Michigan automobile insurance.
On the other hand, since returning to his childhood home, Maine is listed as
Duff’s official mailing address, as his residence on his tax returns, and as
the legal address on all of his accounts including his credit card. Duff is
registered to vote in Maine. The majority of his treating physicians and
therapists, numbering close to a dozen, are located in Maine; all of his
family and friends are in Maine, and Duff has a new job for which he works
from his home in Maine. His new employer, who is located in Arizona, but
for whom he works remotely, had him sign a non-compete agreement
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which lists Maine as his principal place of business. Duff also listed
Bradley, Maine, as his residence in his application for social security
disability benefits, his attorney and accountant are located in Maine, all of
his banking is through Bangor Savings Bank of Maine, he has a Maine
fishing license which lists Maine as his residence, and he attends church in
Maine.
II. Standard of Law
“A Rule 12(b)(1) motion addresses whether the Court has authority or
competence to hear a case.” Gilbert v. Ferry, 298 F. Supp. 2d 606, 611
(E.D. Mich. 2003). “[D]iversity of citizenship requires complete diversity
between all plaintiffs on one side and all defendants on the other side.”
Glancy v. Taubman Ctrs., Inc., 373 F.3d 656, 664 (6th Cir. 2004). Diversity
of citizenship for purposes of 28 U.S.C. § 1332 is determined at the time
the complaint is filed. Kaiser v. Loomis, 391 F.2d 1007, 1009 (6th
Cir.1968) (citations omitted); Bateman v. E.I. Dupont De Nemours & Co., 7
F. Supp. 2d 910, 911 (E.D. Mich. 1998). It is well established that
citizenship for purposes of the diversity requirement is equated with
domicile, not residence. Von Dunser v. Aronoff, 915 F.2d 1071, 1072 (6th
Cir.1990); see Kaiser, 391 F.2d at 1009. “To acquire a domicile within a
particular state, a person must be physically present in the state and must
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have either the intention to make his home there indefinitely or the absence
of an intention to make his home elsewhere.” Stifel v. Hopkins, 477 F.2d
1116, 1120 (6th Cir. 1973) (citations omitted); see also Von Dunser, 915
F.2d at 1072 (“Establishment of a new domicile is determined by two
factors: residence in the new domicile, and the intention to remain there.”);
Kaiser, 391 F.2d at 1009 (same).
The party invoking diversity jurisdiction must prove complete diversity
by a preponderance of the evidence. McNutt v. Gen. Motors Acceptance
Corp. of Indiana, 298 U.S. 178, 189 (1936); Everett v. Verizon Wireless,
Inc., 460 F.3d 818, 829 (6th Cir. 2006). Moreover, a person can only have
one domicile at a time for purposes of diversity jurisdiction—a previous
domicile can not be lost until another is adequately established. Eastman
v. Univ. of Michigan, 30 F.3d 670, 672–73 (6th Cir.1994); see also Von
Dunser, 915 F.2d at 1072.
To determine the domicile of a party for purposes of considering
whether diversity jurisdiction exists, courts typically take into account a
variety of factors indicating the extent of a particular party's ties to the
purported domicile. These include, but are not limited to:
[c]urrent residence; voting registration and voting
practices; location of personal and real property; location
of brokerage and bank accounts; membership in unions;
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fraternal organizations, churches, clubs and other
associations; place of employment or business; driver
licenses and other automobile registration; [and] payment
of taxes.
Persinger v. Extendicare Health Servs., Inc., 539 F. Supp. 2d 995, 996–97
(S.D. Ohio 2008) (citing 13B Charles A. Wright, Arthur R. Miller, and
Edward H. Cooper, Federal Practice and Procedure § 3612 (2d ed.1984)).
Courts also consider the location of a plaintiff’s physician, lawyer,
accountant, and other service providers. Bateman, 7 Supp. 2d at 912. No
single one of these factors is dispositive, and the analysis does not focus
simply on the number of contacts with the purported domicile, but also their
substantive nature. Persinger, 539 F. Supp. 2d at 997. In sum, domicile is
“the place where a person dwells and which is the center of his domestic,
social, and civil life.” Bateman, 7 F. Supp. 2d at 912.
III. Analysis
Duff has established by a preponderance of the evidence that he was
a citizen of Maine at the time this lawsuit was filed. He has demonstrated
(1) a significant connection to the State of Maine, and (2) an intent to
remain in Maine until he can live independently without the care and
support of his parents who have been assisting him in his daily living since
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he was released from hospitalization and rehabilitation in the fall of 2015.
The court analyzes these two elements below.
A.
Connection to Maine
As outlined above, Duff’s entire life, social and family connections,
medical care and professional services have been in Maine since 2015.
But Defendants argue that Duff is a citizen of Michigan because he
accepted employment in Michigan in 2014, accepted a relocation bonus,
secured temporary housing, and obtained a Michigan driver’s license and
automotive insurance which he continues to maintain to the present time.
At his deposition, Duff testified that he kept his Michigan driver’s license
because emotionally it was hard for him to accept that he is back to Maine
as it was his “plan to move on with [his] life.” (ECF No. 59, Ex. B at PageID
1668). Although the evidence shows that Duff intended to make Michigan
his home when he accepted employment in 2014, when he filed this lawsuit
in 2017, he had been living in Maine for over two years and was unable to
move on from his parents’ home due to the medical care and daily living
assistance he required as a result of the accident giving rise to this lawsuit.
For the past four years, Duff’s life has revolved around doctor visits,
physical therapy, managing and weaning off pain medication, and learning
how to adjust to life with a significant disability. All of this has taken place
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in Maine at his parents’ home, and it is indeterminate when Duff will be able
to live without their daily assistance.
Many factors establish that Duff has significant ties to Maine. Maine
is the place where he has lived continuously since 2015, receives medical
care, banks, votes, attends church, and works from home. It is also his
legal residence which is he listed on his tax returns and application for
government benefits. Duff’s strong connections to Maine support the
conclusion that he is domiciled in Maine.
B.
Intent to Remain
Duff has also established an intent to remain in Maine indefinitely.
The court rejects Defendants’ argument that Duff is not a citizen of Maine
because he does not intend to stay there but remains a citizen of Michigan
where he lived for ten months from 2014 to 2015. Defendants argue that
Duff’s and his father’s deposition testimony establishes that Duff’s intent
when he moved to Michigan was to remain there permanently. Defendants
also argue that Duff intends to move to Arizona, or another warmer climate
that will be more comfortable given his medical condition, not to stay in
Maine; thus, Maine cannot be his domicile. Defendants further argue that
this court may not consider Duff’s affidavit to the extent it conflicts with his
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deposition testimony. Again, the court rejects this argument as there is no
conflict between Duff’s deposition testimony and his affidavit. While Duff
planned to remain in Michigan when he accepted employment with IAV,
and hopes to someday move out of his parents’ home in Maine, the reality
is that at the time he filed this lawsuit, he had been living continuously in
Maine for over two years, had re-established significant contacts with the
State where he had lived in for all but 10 months of his 27 years of life, and
was unable to fulfill his dream of moving on with his life because of the
medical care and daily living assistance he required as a result of the
accident giving rise to this lawsuit.
The cases Defendants rely upon are inapposite. In Lim v. Chisato
Nojiri & Terumo Americas Holdings, Inc., No. 10-CV-14080, 2011 WL
1626551, at *1 (E.D. Mich. Apr. 28, 2011), the court found that Plaintiff’s
domicile was in Michigan, not in his former residence in Virginia despite
certain connections he maintained to that state because at the time he filed
the lawsuit, Plaintiff had:
(1) constructed and purchased a home in Michigan, (2)
voluntarily executed, filed with the State of Michigan and
did not rescind a “Principal Residence Exemption Affidavit”
which admits that Michigan is Plaintiff's “permanent
home”—“the place to which [he] intend[s] to return to
whenever [he] go[es] away;” (3) filed a 2010 W–4
Withholding Certificate with the State of Michigan listing his
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Ann Arbor address; (4) continued to use his Michigan
mailing address for his court proceedings, both in this
action and in litigation against another former employer in
the United States District Court, District of Maryland; (5)
moved to and now resides and works in Madison,
Wisconsin, not Virginia; (6) did not list his Michigan home
for sale until October 21, 2010, after filing the instant
Complaint; and (7) searched for jobs in thirteen different
states following his termination, none of which was
Virginia, where Plaintiff conceded there was no work
commensurate with his education and training.
Id. at *1. Unlike the plaintiff in Lim, Duff never purchased a home which he
owned at the time he filed his lawsuit, and Duff returned to his childhood
home, unlike the plaintiff in Lim who never returned to his prior residence
after accepting permanent employment in Michigan.
Likewise, Ford Motor Co. v. Collins, No. 11-15011, 2011 WL
5877216, (E.D. Mich. Nov. 23, 2011) is distinguishable. In that case, Ford
sued its former high-level executive for breach of a non-compete
agreement. Id. at *1. At the time the lawsuit was filed, Defendant was still
living in Michigan where he owned a home despite the fact that he had
accepted another job offer in Texas. Id. at *3. Because diversity is
determined at the time the lawsuit was filed, and Defendant was living in
Michigan, among other factors, at that time, the court found that Defendant
was a citizen of Michigan. Id. at *4. By contrast, when this lawsuit was
filed, Duff had been residing in Maine continuously for over two years.
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Upon review of Duff’s ties to Maine, his required medical care for
which he is treating with physicians and therapists in Maine, and the daily
living assistance provided by his parents at their home in Maine, the court
finds that at the time the lawsuit was filed, Duff was both physically present
in Maine and had the requisite intent to make Maine his home indefinitely;
thus, Duff’s domicile is Maine. Accordingly, there is complete diversity, and
this court has subject matter jurisdiction over the instant dispute.
IV. Conclusion
For the reasons set forth above, Defendants’ motion to dismiss for
lack of subject matter jurisdiction (ECF No. 44) is DENIED.
IT IS SO ORDERED.
Dated: November 8, 2019
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
On November 8, 2019, copies of this Order were served upon
attorneys of record by electronic and ordinary mail.
s/Marcia Beauchemin
Deputy Clerk
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