Barringer v. Whitworth et al
OPINION and ORDER Denying Defendant Carlson's and Defendant Parker's Motions to Dismiss 57 , 58 . Signed by District Judge Bernard A. Friedman. (JCur)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Civil Action No. 18-CV-11174
HON. BERNARD A. FRIEDMAN
BRENDA CARLSON, and
OPINION AND ORDER DENYING DEFENDANT CARLSON=S
AND DEFENDANT PARKER=S MOTIONS TO DISMISS
This matter is presently before the Court on the motions of defendants Carlson
and Parker to dismiss [docket entries 57 and 58]. Plaintiff has filed a response in opposition.
Pursuant to E.D. Mich. LR 7.1(f)(2), the Court shall decide these motions without a hearing.
Defendants seek dismissal of the complaint pursuant to Fed. R. Civ. P. 12(b)(1)
on the grounds that diversity jurisdiction (the sole jurisdictional basis asserted in the complaint)
is lacking because plaintiff is domiciled in Michigan, not Arkansas as alleged in the complaint.
If plaintiff is domiciled in Michigan then defendants= jurisdictional argument would be correct,
as they, too, are domiciled in Michigan, and diversity jurisdiction does not exist unless there is
Acomplete diversity,@ i.e., no overlap in citizenship between plaintiff and defendants. Lincoln
Prop. Co. v. Roche, 546 U.S. 81, 89 (2005). Plaintiff concedes that he, as the party seeking to
invoke the Court=s jurisdiction, has the burden of proving its existence.
Plaintiff has met this burden. In an affidavit filed previously in this matter, see
docket entry 49, Ex. A, plaintiff avers that he moved from Michigan to Arkansas in 2015; that he
moved all of his property with him; that since 2016 he has filed his tax returns as an Arkansas
resident; that he receives his W-2s at his Arkansas address; that since that time he no longer files
Michigan income tax returns; that he purchased his automobile in Arkansas and has registered it
there; that he has obtained a driver=s license in Arkansas; and that he intends to maintain his
primary residence in Arkansas, not in Michigan. Defendants= only counter-evidence is that
plaintiff has a Michigan=s driver=s license. But this merely shows, as plaintiff concedes, that he
used to live in Michigan and that the Michigan license has not yet expired.
On this record, plaintiff has proven to the Court=s satisfaction that he is now
domiciled in, and therefore is a citizen of, the State of Arkansas, as he resides in that state and
intends to remain there. See Mississippi Bank of Choctaw Indians v. Holyfield, 490 U.S. 30, 48
(1989). As defendants admit they are citizens of the State of Michigan, diversity is complete.
IT IS ORDERED that defendants= motions to dismiss are denied.
Dated: July 3, 2018
s/Bernard A. Friedman
BERNARD A. FRIEDMAN
SENIOR UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and any unrepresented
parties via the Court's ECF System to their respective email or First Class U.S. mail addresses disclosed on the
Notice of Electronic Filing on July 3, 2018.
s/Johnetta M. Curry-Williams
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