Brown v. Tappan et al
ORDER denying 18 Motion to Remand for the reasons set out in the Order. Brown must show cause within ten days of the entry of this Order why the Court should not correct the docket to reflect the Defendant as Frederick Tappan, Jr. Failing to resp ond will be construed as Brown consenting to the change. The parties are directed to contact the chambers of United States Magistrate Judge F. Keith Ball within ten days of the entry of this Order to set the case for a case-management conference. Signed by District Judge Daniel P. Jordan III on April 11, 2017.(SP)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
JANA M. BROWN
CIVIL ACTION NO. 3:16cv546-DPJ-FKB
FREDERICK TAPPAN AND
JOHN AND JANE DOES 1-10
This removed case is before the Court on Plaintiff Jana M. Brown’s Motion to Remand
. Having fully considered the parties’ memoranda and submissions, along with the pertinent
authorities, the Court finds that diversity jurisdiction exists, so Brown’s motion should be denied.
Facts and Procedural History
This case stems from a September 2015 car accident involving Brown, a resident citizen
of Mississippi, and Defendant Frederick Tappan, a college student residing in Mississippi. Pl.’s
Compl. [1-1]. In response to the accident, Brown filed suit in the Circuit Court of Hinds County,
Mississippi, on February 23, 2016. Notice of Removal  ¶ 1. On July 11, 2016, Tappan
removed the case to this Court based on diversity jurisdiction, and the parties thereafter
conducted jurisdictional discovery. When that discovery concluded, Brown moved to remand,
acknowledging that the Notice of Removal was timely filed but arguing that Tappan is a nondiverse Mississippi citizen. Pl.’s Mot.  at 1; Pl.’s Mem.  at 2. Tappan responded that he
is a Tennessee citizen , and Brown replied . The Court, having considered the parties’
arguments and relevant authority, is now prepared to rule.
Under 28 U.S.C. § 1441(a), “any civil action brought in a State court of which the district
courts of the United States have original jurisdiction may be removed by the defendant” to
federal district court. Tappan argues that removal to this Court is proper under 28 U.S.C.
§ 1332(a)(1), which grants the district courts original jurisdiction over civil actions between
“citizens of different States” in which “the matter in controversy exceeds the sum or value of
$75,000.” The parties here do not contest the amount-in-controversy requirement, thus the sole
question is whether complete diversity of citizenship exists.
From the outset, there is a presumption against a federal court having jurisdiction. Coury
v. Prot, 85 F.3d 244, 248 (5th Cir. 1996). The party invoking federal jurisdiction must rebut that
presumption. Id. Likewise, if “diversity jurisdiction is properly challenged, that party also bears
the burden of proof.” Mas v. Perry, 489 F.2d 1396, 1399 (5th Cir. 1974) (citations omitted).
Because Tappan invoked this Court’s jurisdiction, he now must establish it by a preponderance
of the evidence. Preston v. Tenet Healthsystem Mem’l Med. Ctr., Inc., 485 F.3d 804, 814 (5th
Cir. 2007). In determining whether Tappan has met that burden, the Court “may look to any
record evidence, and may receive affidavits, deposition testimony or live testimony concerning
the facts underlying the citizenship of the parties.” Coury, 85 F.3d at 249.
The issue is whether Tappan, a college student over the age of 21, is a non-diverse citizen
of Mississippi or a diverse citizen of Tennessee. For purposes of the complete-diversity
requirement, citizenship means domicile. Mas, 489 F.2d at 1399. A person acquires a “domicile
of origin” at birth. Acridge v. Evangelican Lutheran Good Samaritan Soc’y, 334 F.3d 444, 448
(5th Cir. 2003). That “domicile of origin” continues unless there is sufficient evidence of a
change. Id. A party establishes such a change by showing (1) “physical presence at the new
location” and (2) “an intention to remain there indefinitely.” Coury, 85 F.3d at 250.
Here, there is no dispute that Tappan was born in Tennessee, so Tennessee is his domicile
of origin. But he and his parents moved to Mississippi in 2010, and he has remained in this state
since then to attend school. Given his presence in this state, the question is whether his domicile
changed from his domicile of origin—Tennessee—at any time before this suit was filed.
To answer that question, the Court looks first to the domicile of Tappan’s parents.
Tappan was a minor when he and his parents moved to Mississippi. “Since most minors are
legally incapable of forming the requisite intent to establish a domicile, their domicile is
determined by that of their parents.” Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30,
48 (1989). So if Tappan’s parents changed their domicile from Tennessee to Mississippi before
Tappan turned 21, Tappan’s domicile likewise changed.
There is no dispute that Tappan’s parents moved to Mississippi at one point, so the
question is whether they intended to remain in Mississippi indefinitely. Coury, 85 F.3d at 250.
When determining intent to remain, courts consider several factors, no single one being
determinative. Id. at 251. Factors include the “places where the litigant exercises civil and
political rights, pays taxes, owns real and personal property, has driver’s and other licenses,
maintains bank accounts, belongs to clubs and churches, has places of business or employment,
and maintains a home for his family.” Id. Courts determine domicile in light of these objective
facts; if a litigant’s statement of intent conflicts with them, that statement—though relevant—is
entitled to little weight. Id.
On this standard, the Court finds that Tappan’s parents remained Tennessee citizens. To
begin with, they lived in Memphis, Tennessee, at least from the time Tappan was born in 1994
through his tenth-grade year in high school. Tappan Dep. [18-1] at 7, 12. But after the tenth
grade, Tappan had a spat with his football coach and wanted to transfer. Id. at 12. Had he
transferred to a school within 20 miles, he would have lost a year of athletic eligibility, so in
2010, he and his family moved to a house in Southaven, Mississippi, that they had previously
purchased as an investment property. Id. at 8, 12, 41. Despite this move, the family retained
their Tennessee home, id. at 7, and maintained contacts in Tennessee. For example, Tappan’s
sister remained in a Memphis school, id. at 36, and it appears that Tappan’s father pastored a
church in Memphis, see Def.’s Resp.  at 2, 4. Once Tappan completed high school two years
later, his parents returned to their Tennessee home, where they still reside with Tappan’s sister,
great grandfather, and grandmother. Tappan Dep. [18-1] at 7, 20. No one currently resides at
the Southaven address, id. at 8, and Tappan’s parents do not stay there, id. at 9. Finally,
Tappan’s father owns the vehicle Tappan was driving at the time of the accident; the vehicle is
titled in Memphis and has a Tennessee license plate. Id. at 33–34.
Against these facts, Brown notes that Tappan’s parents obtained a homestead exemption
on the Mississippi residence, but this fact is not alone determinative. See Wolf Network, LLC v.
AML Diagnostics, Inc., No. 3:15-CV-3797-B, 2016 WL 1242628, at *2 (N.D. Tex. Mar. 30,
2016) (“Even if Wilson did take a homestead exemption for the Texas property, this alone is not
enough to outweigh the evidence suggesting he is a Florida citizen.”) (citing Cox, Cox, Filo,
Camel & Wilson, LLC v. Sasol N. Am., Inc., No. 2:11-CV-0856, 2012 WL 262613, at *4–5
(W.D. La. Jan. 30, 2012), aff’d, 2012 WL 2254279 (W.D. La. June 14, 2012) (finding that
individual changed domicile despite claiming homestead exemption in other state) (citing Coury,
85 F.3d at 254)).
On balance, the Court concludes that Tappan’s parents never possessed an intent to
remain indefinitely in Mississippi. They instead intended to return to Memphis after Tappan
finished playing high-school football—which they did. And as such, Tappan was a Tennessee
citizen through his 21st birthday. The question then becomes whether Tappan changed his
citizenship once emancipated.
It is uncontested that when this case was filed, Tappan physically resided in Mississippi;
less clear is whether he intended to remain here indefinitely. As discussed above, Tappan never
altered his Tennessee “domicile of origin” before turning 21. But if he had an intent to
indefinitely remain in Mississippi after that, he would be a Mississippi citizen. Coury, 85 F.3d at
The parties point to conflicting evidence on this issue. According to Brown, Tappan
intended to remain in Mississippi based on the following facts:
Tappan attended and graduated from a Mississippi high school;
He holds a Mississippi driver’s license;
He attends college in Mississippi;
He pays in-state tuition;
He has worked in Mississippi;
His automobile insurance policy is issued to a Mississippi address; and
He visits and keeps personal property at a Mississippi home owned by his parents.
Pl.’s Mem.  at 3–6; Reply to Resp.  ¶ 6.1 Tappan counters with these facts, all
supporting Tennessee citizenship:
He considers himself a Tennessee citizen;
He resides with his parents in Tennessee when not attending college classes;
He receives mail at his parents’ Tennessee address;
He is registered to vote in Tennessee;
He lived in Tennessee until 2010, when he moved with his parents to Mississippi
for his final two years of high school;
He has worked in Tennessee since 2011;
He is a member of a church in Tennessee;
Some of these facts relate more directly to events that occurred before Tappan turned 21.
(8) He has sought post-graduation jobs only in Tennessee;
(9) He drove a Tennessee-titled vehicle at the time of the accident; and
(10) He holds an account with a Tennessee bank.
Def.’s Aff. [1-2] ¶ 1–5; Resp. to Mot.  at 1–3.
At first blush, the most compelling facts for Brown’s position are that Tappan received
in-state tuition and had a Mississippi driver’s license. But numerous courts have held that instate tuition does not determine domicile. See, e.g., Lee v. Charles, No. 12 CIV. 7374 JFK, 2013
WL 5878183, at *3 (S.D.N.Y. Nov. 1, 2013) (“It is well established that resident status for
tuition purposes and citizenship for diversity jurisdiction purposes are two entirely distinct
concepts.”) (collecting cases and citing 13 Charles Alan Wright et al., Federal Practice and
Procedure § 3619 (3d ed. 1998)). As for the Mississippi driver’s license, Tappan explains that he
received his first license while in high school in Southaven and has maintained it. Tappan Dep.
[18-1] at 10, 11. That testimony softens the impact of the Mississippi license, at least to some
Regardless, no one fact is determinative; they must all be weighed. Coury, 85 F.3d at
251. And here, Tappan’s facts support his stated intent to return to Tennessee when he
completes his studies. Significantly, he goes home to his parents’ Tennessee residence; has
worked summers in Tennessee; maintains governmental, business, familial, and spiritual ties in
Tennessee; and is looking exclusively to Tennessee for post-graduate employment. These facts
indicate that after turning 21, Tappan did not intend to indefinitely remain in Mississippi. See
Kennedy v. Cincinnati Ins. Co., No. 16-16537, 2017 WL 192396 (E.D. La. Jan. 18, 2017)
(finding college student was citizen of home state under similar facts). So while his athletic and
educational pursuits led him to reside in Mississippi, the evidence is insufficient to show he ever
abandoned his original domicile: Tennessee.
The Court has considered all of the parties’ arguments. Those not specifically addressed
would not have changed the outcome. Based on the foregoing, the Court finds complete
diversity of citizenship exists and thus denies Brown’s Motion to Remand .
Additionally, the Court notes that Brown identified Defendant as “Frederick Tappan” in
the Complaint, but Defendant clarified in his Answer that he is Frederick Tappan, Jr. See
Answer  (“comes Defendant, Frederick Tappan, Jr., (improperly referred to as Frederick
Tappan in the Complaint)”). Brown must show cause within ten days of the entry of this Order
why the Court should not correct the docket to reflect the Defendant as Frederick Tappan, Jr.
Failing to respond will be construed as Brown consenting to the change.
Finally, the parties are directed to contact the chambers of United States Magistrate Judge
F. Keith Ball within ten days of the entry of this Order to set the case for a case-management
SO ORDERED AND ADJUDGED this the 11th day of April, 2017.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE
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