Lamming v. Prestige Maintenance USA, Ltd. et al

Filing 15

ORDER AND OPINION REMANDING CASE DUE TO LACK OF JURISDICTION. Signed on 4/23/15 by District Judge Ortrie D. Smith. (Matthes, Renea)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION

ANDREW P. LAMMING,

)
)
Plaintiff,
)
)
vs.
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)
SIRFREDO E. RAMIREZ RODRIGUEZ, )
et al.,
)
)
Defendants.
)

Case No. 15-0158-CV-W-ODS

ORDER AND OPINION REMANDING CASE DUE TO LACK OF JURISDICTION
On February 2, 2015, Plaintiff Andrew Lamming (“Plaintiff”) originally filed this
action in state court against Prestige Maintenance USA, Ltd., Prestige Maintenance
USA Janitorial Supply, LLC, Sifredo E. Ramirez, and Does #1 through #5. Doc. #1-2.
On March 4, 2015, Defendants Prestige Maintenance USA, Ltd. and Prestige
Maintenance USA Janitorial Supply, LLC (“Prestige Defendants”) removed the case to
federal court asserting diversity of citizenship as the basis for jurisdiction. Doc. #1.
However, the Court’s review of the state court petition revealed complete diversity of
citizenship may be lacking because the state court petition asserts Plaintiff and
Defendant Sifredo Rodriguez’s (“Defendant Rodriguez”) both reside in Missouri. Doc.
#1-2.
To determine if this Court has subject matter jurisdiction based on diversity of
citizenship, the Court ordered Plaintiff and the Prestige Defendants to brief the issue of
Rodriguez’s citizenship. Doc. # 4, Doc. #8. The matter is now fully briefed. The Court
has reviewed the parties’ arguments and finds subject matter jurisdiction does not exist.
Accordingly, the Court remands this action to state court for all further proceedings.
Legal Standard
The party invoking federal jurisdiction bears the burden of demonstrating it exists.
Bell v. Hershey Co., 557 F.3d 953, 956 (8th Cir. 2009). Thus, the Prestige Defendants
bear the burden in this case. Factual matters such as the citizenship of the parties must

be established by the preponderance of the evidence. Id., see also In re Prempro
Products Liability Litigation, 591 F.3d 613, 620-21 (8th Cir. 2010). When diversity
jurisdiction is asserted, complete diversity of citizenship must exist. “Complete diversity
of citizenship exists where no defendant holds citizenship in the same state where any
plaintiff holds citizenship.” In re Prempro Products Liability Litigation, 591 F.3d at 62021. Further, complete diversity must exist at the time of filing of the state court petition.
See Knudson v. Systems Painters, Inc., 634 F.3d 968, 975-76 (8th Cir. 2011). A party’s
“[c]itizenship is determined by a person’s physical presence in a state along with his
intent to remain there indefinitely.” Altimore v. Mount Mercy College, 420 F.3d 763, 768
(8th Cir. 2005) (citation omitted). Factors to consider in determining a party’s citizenship
include, but are not limited to, where that party resides, votes, banks, possesses a
driver’s license, seeks medical treatment, pays taxes, and works. Id. at 769. Finally, a
party “remains a citizen of [a] state until he legally acquires a new state of citizenship.”
Id.
Discussion
The parties do not dispute that Plaintiff is a citizen of Missouri or that the Prestige
Defendants are not citizens of Missouri. Thus, the Court’s inquiry focuses on Defendant
Rodriguez’s citizenship.
Plaintiff asserts that at some point prior to Plaintiff filing the state court petition,
Defendant Rodriguez was domiciled in Missouri. Until three months ago, Defendant
Rodriguez had a bank account in Missouri. Doc. #14-3. As recently as September
2014, Defendant Rodriguez resided at 5203 Oak Leaf Drive, Kansas City, Missouri.1
Doc. #14-4. Defendant Rodriguez carried out work duties in Missouri. Doc. #1-2. A
LexisNexis Advanced Person Search Result search suggests Defendant Rodriguez
resided in Missouri since May 2013.2 Doc. #12-4. He had an Illinois driver’s license in
March 2013 and appears to have maintained that driver’s license until at least August
2014. Doc. #14-1, Doc. #12-2. In considering the factors outlined in Altimore, the Court
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An employee of the Prestige Defendants appears to have provided 5203 Oak Leaf Drive,
Kansas City, Missouri as Defendant Rodriguez’s address to law enforcement officials. Doc. #12-2.
2
Defendant Rodriguez appears to have applied for and ultimately been hired by the Prestige
Defendants in March 2013. Doc. #14-2.

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finds Defendant Rodriguez was domiciled in Missouri prior to the filing of the state court
petition. See Altimore v. Mount Mercy College, 420 F.3d at 769. Thus, the question
becomes whether Defendant Rodriguez’s domicile had changed at the time of filing of
the state court petition.
The Prestige Defendants contend Defendant Rodriguez was not domiciled in
Missouri at the time of filing. Instead, they contend they have adduced evidence
Defendant Rodriguez is domiciled in either Florida or Illinois. The Court does not find
there is sufficient evidence that Defendant Rodriguez was domiciled in Illinois at the
time of filing. The evidence the Prestige Defendants present in support of this
contention is that in March 2013 – before Defendant Rodriguez was hired by the
Prestige Defendants to work in the Kansas City area – he listed an Illinois address in his
employment application and that he had an Illinois driver’s license. Doc. #14-1.
However, as discussed above, since March 2013, Defendant Rodriguez subsequently
engaged in a variety of activities in Missouri establishing his domicile there. If
Defendant Rodriguez has ever been domiciled in Illinois, he would have been so
domiciled before he was domiciled in Missouri.
To support their contention that Defendant Rodriguez is domiciled in Florida, the
Prestige Defendants maintain he no longer lives in Missouri and he no longer has a
Missouri bank account. Doc. #14-3, Doc. #14-4. They also assert a Westlaw Next
PeopleMap Report shows Defendant Rodriguez’s current address is in Florida and that
Florida issued him a driver’s license on January 21, 2015. Doc. #6-3. Plaintiff responds
that the license type was actually a state ID card, and the Prestige Defendants do not
dispute this assertion. Regardless, even if Florida issued Defendant Rodriguez a
driver’s license, the Court would not find this fact – alone – establishes Defendant
Rodriguez intended to stay in Florida indefinitely. Additionally, Plaintiff claims he
attempted to serve Defendant Rodriguez at his alleged Florida address, was unable to
do so, and a person at that Florida address claimed Defendant Rodriguez had moved to
Texas. Doc. #12-5.
The Prestige Defendants’ evidence may indicate that Defendant Rodriguez is no
longer in Missouri and that Defendant Rodriguez does not have an intent to stay in or
return to Missouri. The Prestige Defendants’ evidence also may indicate that Defendant
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Rodriguez was present in Florida at the time of filing of the state court petition.
However, the Prestige Defendants have failed to present sufficient evidence as to
where Defendant Rodriguez has an intent to stay after Defendant Rodriguez departed
Missouri. Because Defendant Rodriguez remains a citizen of Missouri until he legally
acquires a new state of citizenship, the Court finds Defendant Rodriguez is still
considered a citizen of Missouri.
Due to the fact Plaintiff and Defendant Rodriguez are both citizens of Missouri,
complete diversity of citizenship does not exist. Thus, the Court lacks subject matter
jurisdiction over this matter.
Conclusion
The Court finds it lacks subject matter jurisdiction, and therefore remands the
case to state court for all further proceedings.

IT IS SO ORDERED.

/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT

DATE: April 23, 2015

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