Mississippi Farm Bureau Casualty Insurance Company v. Bell et al
Memorandum Opinion and Order granting 6 MOTION to Dismiss Complaint for Declaratory Judgment. A separate judgment shall be entered. Signed by District Judge Tom S. Lee on 8/30/17 (LWE)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
MISSISSIPPI FARM BUREAU
CASUALTY INSURANCE COMPANY
CIVIL ACTION NO. 3:17CV198TSL-LRA
ELIJAH J. BELL AND
MEMORANDUM OPINION AND ORDER
This cause is before the court on the motion of defendants
Elijah J. Bell and Clarissa Bell to dismiss for lack of subject
matter jurisdiction pursuant to Federal Rule of Civil Procedure
Plaintiff Mississippi Farm Bureau Casualty Insurance
Company (Farm Bureau) has responded in opposition to the motion.
The court, having considered the memoranda of authorities,
together with attachments, submitted by the parties, concludes the
motion to dismiss should be granted.
Defendants owned and occupied a home located at 5922
Binnsville Road, Scuba, Mississippi.
On June 9, 2016, the home
and its contents were damaged or destroyed by fire.
filed a claim for benefits under their homeowners’ policy with
In connection with its investigation, Farm Bureau
requested that defendants submit to an examination under oath.
According to Farm Bureau, defendants initially refused,
repeatedly, and eventually offered to appear for examinations
under oath only if Farm Bureau would agree to seal the transcripts
of their statements, ostensibly because Elijah Bell was under
criminal investigation for arson and was desirous of both
complying with the policy’s cooperation provisions and yet also
preserving his Fifth Amendment right against self-incrimination.1
Farm Bureau filed the present action on March 22, 2017, seeking a
declaratory judgment that defendants’ alleged breach of the
cooperation clause and certain misrepresentations and concealments
by defendants following the fire loss have voided the policy.
its complaint, Farm Bureau has asserted jurisdiction based on
diversity of citizenship, alleging that it is a Mississippi
citizen while plaintiffs are citizens of Alabama.
Following service of the complaint, defendants moved to
dismiss, contending there is no diversity of citizenship as they
are, and were at the time the complaint was filed, citizens of
Defendants presented with their motion to dismiss
affidavits in which they state the following:
that they lived at
their home at 5922 Binnsville Road, Scooba, Mississippi, from 2002
until the home was destroyed by fire on June 9, 2016; that
following the fire loss, they temporarily relocated to Elijah
Farm Bureau advises that Elijah Bell has been charged
with arson relating to the June 9, 2016 fire. Record evidence
reflects that on January 11, 2017, defendants herein filed a suit
in the nature of a declaratory judgment action in the Chancery
Court of Kemper County, Mississippi, asking that the court declare
that their agreement to submit to an examination under oath on
condition that the transcript of their statements be sealed
complied with the policy’s cooperation provision. Farm Bureau has
advised that Elijah Bell has been charged with arson relating to
the subject fire.
Bell’s mother’s home in Alabama because they have “no where else
to go until [their] home is rebuilt” in Mississippi; that the only
real property they own is at 5922 Binnsville Road in Scooba,
Kemper County, Mississippi; and that they have no intention to
remain in Alabama and instead intend to return to Mississippi as
soon as possible, i.e., as soon as they receive their insurance
proceeds and are able to rebuild their home.
They thus maintain
that complete diversity is lacking as they are citizens of
Mississippi, and that the case must therefore be dismissed.
In response, Farm Bureau argued that defendants’ “selfserving conclusory statements” in their affidavits regarding their
alleged intent to move back to Mississippi should not be credited
since the competing evidence it submitted indicated a clear lack
of intent on their part to return to Mississippi.
requested leave to conduct jurisdictional discovery in connection
with the motion.
The court allowed sixty days for jurisdictional
discovery, following which the parties presented supplemental
evidence and argument on the motion.
The motion is now ripe for
Rule 12(b)(1) of the Federal Rules of Civil Procedure
provides for dismissal of an action for lack of subject matter
Where a defendant moves for dismissal under Rule
12(b)(1) and submits affidavits, testimony, or other evidentiary
materials in support of his motion, the plaintiff is required in
response to submit facts through some evidentiary method and has
the burden of proving by a preponderance of the evidence that the
court does have subject matter jurisdiction.
Weinberger, 644 F.2d 521, 523 (5th Cir. 1981).
District courts have diversity jurisdiction over civil
actions between “citizens of different States,” where the amount
in controversy is over $75,000, exclusive of interest and costs.
28 U.S.C. § 1332(a).2
For jurisdiction based on diversity of
citizenship, there must be complete diversity, meaning that the
citizenship of every plaintiff must be different from that of
Caterpillar Inc. v. Lewis, 519 U.S. 61, 68, 117
S. Ct. 467, 136 L. Ed. 2d 437 (1996).
Such complete diversity
“must be present at the time the complaint is filed.”
Perry, 489 F.2d 1396, 1399 (5th Cir. 1974).
For purposes of diversity jurisdiction, an individual is a
citizen of the state where he establishes his domicile.
v. Tenet Healthsystem Mem'l Med. Ctr., Inc., 485 F.3d 793, 797
(5th Cir. 2007).
“‘Citizenship’ and ‘residence’ are not
synonymous,” Parker v. Overman, 59 U.S. 137, 141, 18 How. 137, 15
L.Ed. 318 (1855); thus, “[a] party's residence in a state alone
does not establish domicile.
Domicile requires residence in the
state and an intent to remain in the state.”
Id. at 798
Defendants acknowledge that the amount in controversy
As Judge Starrett explained in the case of
Farris v. Bevard,
“A person acquires a ‘domicile of origin’ at birth, and
this domicile is presumed to continue absent sufficient
evidence of change.” Acridge v. Evangelical Lutheran
Good Samaritan Society, 334 F.3d 444, 448 (5th Cir.
2003) (quoting Palazzo v. Corio, 232 F.3d 38, 42 (2d
Cir. 2000)). The terms “domicile” and “residence” are
not synonymous. See Combee v. Shell Oil Co., 615 F.2d
698, 700 (5th Cir. 1980) (citing Mas v. Perry, 489 F.2d
1396, 1399 (5th Cir. 1974)). “Evidence of a person's
place of residence, however, is prima facie proof of his
domicile.” Hollinger v. Home State Mut. Ins. Co., 654
F.3d 564, 571 (5th Cir. 2011) (citations omitted). “A
person's domicile persists until a new one is acquired
or it is clearly abandoned.” Coury [v. Prot, 85 F.3d
244, 250 (5th Cir. 1996] (citations omitted). The
presumption in favor of continuing domicile can be
overcome by evidence of an individual's residence in a
new state and his or her intention to remain in the new
state indefinitely. Acridge, 334 F.3d at 448. The mere
presence of an individual in a new locale, without any
showing of the requisite intent, is insufficient to
establish a change in domicile. Id.; see also Welsh v.
Am. Sur. Co. of New York, 186 F.2d 16, 17 (5th Cir.
1951) (“Mere absence from a fixed home, however long
continued, cannot work the change.”). Courts have
utilized several factors in determining whether an
individual has changed his domicile, including “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.”
Acridge, 334 F.3d at 448 (quoting Coury, 85 F.3d at
251). All factors are weighed equally with no single
factor being determinative. Id.
No. 2:15-CV-25-KS-JCG, 2015 WL 3885501, at *2 (S.D. Miss. June 24,
It is undisputed that at the time the complaint in this cause
was filed, defendants were living in Alabama, at the home of
Elijah Bell’s mother, and had been living there for approximately
However, for fourteen years prior to the fire that
destroyed their home, defendants had lived at their home in
During that time, defendants were domiciled
in Mississippi, notwithstanding that many of the traditional
indicia of domicile would have suggested an Alabama domicile.
They worked in Alabama; they banked in Alabama; they were members
of an Alabama church; they had Alabama cellular telephone numbers;
and Clarissa Bell had an Alabama driver’s license.
Clarissa Bell listed an Alabama address – her parents’ address –
on her tax returns.
Throughout this time, however, Elijah Bell
had a Mississippi driver’s license; Clarissa Bell, despite being a
member of an Alabama church, actually attended church in
Mississippi; Elijah Bell was registered to vote only in
Mississippi, though he apparently had not recently voted in an
election;4 defendants’ vehicles were registered in Mississippi;
they owned the real property at 5922 Binsville Road, where their
home was located; and they paid property taxes on that property.
Farm Bureau has presented evidence which indicates that
for some period of time around January 2015, six months before the
fire loss, defendants were separated, with Clarissa and the
parties’ son living at the home in Scooba and Elijah living at his
mother’s home in Alabama. According to defendants’ affidavits,
however, at the time of the fire, they were both living at their
Scooba home. The court has no basis to disbelieve their
statements on this point.
There is no indication that Clarissa Bell was registered
to vote in either state.
None of this changed after defendants moved in with Elijah Bell’s
mother after the fire.
In the court’s opinion, in the circumstances of this case,
the fact that defendants worked and banked, and had the various
other referenced connections to Alabama, at the time this suit was
filed and at all times since, does not suggest an intention by
defendants to change their domicile from Mississippi to Alabama.5
Nothing actually changed, other than their place of residence.
Defendants maintain that they have never intended this change of
residence to be anything other than temporary, as they fully
intend to return to Mississippi when they are financially able to
rebuild their home in Scooba.
The Fifth Circuit has held that “[a] litigant's statement of
intent is relevant to the determination of domicile, but it is
entitled to little weight if it conflicts with the objective
Coury, 85 F.3d at 251.
Farm Bureau submits that the
evidence does indeed contradict defendants’ statements of intent.
In this regard, it first points to a witness statement given by
Clarissa Bell to the Kemper County Sheriff’s Department in January
2015 in which she reported that she and Elijah Bell were
This confluence of contemporaneous connections to
Mississippi and Alabama is attributable to the proximity of
Scooba, Kemper County, Mississippi to Alabama. Kemper County
borders Alabama to the east; and defendants’ home in Scooba was
less than five miles from the Alabama border.
separated, with Elijah Bell living in Alabama with his mother, and
stated that Elijah Bell had threatened to burn down the parties’
Farm Bureau further points out that Elijah Bell leased a
rental unit in Livingston, Alabama on June 1, 2016, just eight
days before the fire loss.
Farm Bureau reasons that Elijah Bell’s
expressed intent to burn the Scooba home and his obtaining an
Alabama apartment prior to the subject fire indicate a clear
intent to remain in Alabama, despite the contrary assertions in
Lastly, it submits that, given the fire
loss, defendants have no appreciable reason to move back to
Mississippi, since their entire lives are in Alabama.
In the court’s opinion, having considered the parties’
arguments and evidence, a preponderance of the evidence does not
belie defendants’ professed intent to return to Mississippi.
Defendants have submitted supplemental affidavits in which they
explain that on June 1, 2016, Elijah Bell did lease an apartment
in Livingston, Alabama, but the apartment was not for him.
Rather, he leased the apartment for the couple’s son to live in
while attending the University of West Alabama (UWA).
however, he broke the lease in October 2017 because the furniture
they planned to use to furnish the apartment was destroyed in the
Farm Bureau points out that defendants’ son was not
actually enrolled at UWA when the apartment was leased; that their
son’s name was not on the lease agreement; and that the only
address UWA had for him was 1311 Sumter 74, Livingston, Alabama,
Clarissa’s parents’ address.
None of these facts casts doubt on
Housing arrangements during college tend
to be temporary, so it would not have been unusual for defendants’
son to have provided UWA a home address rather than an apartment
Moreover, that the lease term commenced in June rather
than August is of no moment; a school term is often shorter than a
And if the parents, and not the son, were going to be
responsible for the rent payments, there would be no need for the
son’s name to appear on the lease documents.
Clarissa Bell did report to law enforcement in January 2015
that her husband was living in Alabama and that he had threatened
to burn the home.
However, the fact that defendants were living
apart for a period of time some six months before the fire and,
more pertinently, over a year before this suit was filed, does not
tend to show that the couple has ever intended to remain in
Alabama rather than return to Mississippi.
Finally, the court notes that Farm Bureau appears to cite
“facts” relating to the fire itself and to defendants’ alleged
conduct in the wake of the fire as demonstrating defendants’
alleged intent to remain in Alabama.
Specifically, Farm Bureau
appears to suggest that if defendants truly intended to make their
home in Mississippi, then Elijah Bell would not have burned the
home in the first place; and, even if he did not burn the home,
then defendants would have been cooperative and forthcoming during
Farm Bureau’s investigation of the fire loss so that they could
recover the policy benefits and set about the business of
rebuilding their home.
It posits that in this way, their conduct
contradicts their affidavits.
To accept Farm Bureau’s argument in
this regard, the court would have to presume that Elijah Bell
committed arson and/or that the parties breached the insurance
This would obviously not be proper in the context of
the present motion.
Cf. Parker v. Gulf City Fisheries, Inc., 803
F.2d 828, 829 (5th Cir. 1993) (as with other questions of subject
matter jurisdiction, if “the factual findings regarding subject
matter jurisdiction are intertwined with the merits,” jurisdiction
will be assumed).
Based on all of the foregoing, it is ordered that defendants’
motion to dismiss is granted.
A separate judgment will be entered in accordance with Rule
58 of the Federal Rules of Civil Procedure.
SO ORDERED this 30th day of August, 2017.
/s/ Tom S. Lee
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?