Conant et al v. The Cincinnati Insurance Company et al

Filing 14

ORDER denying 9 Motion to Remand. Signed by Judge Dana L. Christensen on 8/2/2022. (ASG)

Case 9:22-cv-00092-DLC Document 14 Filed 08/02/22 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
JESSE CONANT AND ADRIANNA
CONANT,

CV 22–92–M–DLC

Plaintiffs,
ORDER
vs.
THE CINCINNATI INSURANCE
COMPANY, a Corporation AND
ZACHARY JOSEPH JACKSON
AILES, an Individual,
Defendants.
Before the Court is Plaintiffs Jesse Conant’s and Adrianna Conant’s Motion
to Remand. (Doc. 9.) The Conants seek remand of this matter back to Montana’s
Fourth Judicial District Court and an award of the fees incurred in bringing this
motion. (Id. at 1.) For the reasons stated herein, the motion will be denied.
BACKGROUND
In June 2016, Defendant Zachary Ailes, a minor, moved to Montana to
attend the Montana Academy. (Doc. 11-1 at 2.) In August 2017, as part of the
Montana Academy program, Ailes moved to Kalispell, Montana and began
attending Flathead High School. (Id.) Ailes reached the age of majority on
January 1, 2018 (id. at 13) and graduated from Flathead High School in June 2018
(id. at 2). After graduating high school, Ailes left Montana, traveling abroad before
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beginning college at Hillsdale College in Michigan in the fall of 2018. (Id. at 2–3.)
In November 2016, Ailes’ parents purchased a home in Florida and began to
reside there. (Id. at 2.) From that point forward, although he was attending
secondary school in Montana, Ailes listed this address as his primary residence and
paid federal income taxes in Florida. (Id. at 4; Doc. 13.) After graduating, Ailes
kept his personal property either at this house in Florida or with him at Hillsdale
College. (Doc. 11-1 at 4.) Ailes has registered to vote in Florida,1 cast a ballot in
that state in 2020, obtained a resident concealed weapons permit, and obtained a
resident-only saltwater shoreline fishing license.2 (Id. at 4–5, 14.)
After his first year of college concluded, Ailes decided to take a trip to
Montana with some friends, arriving on July 7, 2019. (Id. at 3.) This was his first
time back in Montana since he had graduated high school in the spring of 2018.
(Id.) While in Montana, on July 12, 2019, Ailes was involved in a motor vehicle

1

It appears Ailes was registered to vote in Montana at some point (he would have turned 18 a
few months before he graduated high school), but at least as of November 2021 (and likely long
before) this registration was inactive. (Doc. 10-4 at 3–4, 16.)
2
The Court takes judicial notice, see Federal Rule of Evidence 201(b)(1), (c)(1), that the
saltwater shoreline fishing license Ailes obtained is only available to Florida residents. See
Florida Fish and Wildlife Conservation Commission, Saltwater Shoreline Fishing Information,
https://myfwc.com/license/recreational/saltwater-fishing/shoreline-faqs/ (last visited August 2,
2022) (noting resident licenses are free and “[n]on-residents are not eligible for this license”).
Ailes also points to an Alligator Trapping Agent license, (Doc. 11-1 at 15), but this Court
judicially notices such licenses are available to non-residents (meaning the fact that Ailes has one
is not as probative to the issue of domicile, discussed in detail below). See Florida Fish and
Wildlife Conservation Commission, Licenses and Permits: Alligator Trapping “Agent” License,
https://myfwc.com/wildlifehabitats/wildlife/alligator/harvest/hunt-guide/licenses-and-permits/
(last visited August 2, 2022). In obtaining both licenses, however, Ailes listed the Florida
residence his parents purchased in 2016 for his mailing address. (Doc. 11-1 at 14–15.)

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accident when his truck collided with a vehicle driven by Jesse Conant. (Id. at 9–
12.) At the time, Ailes was driving his vehicle, which bared Florida license plates,
and was using his Florida driver’s license. (Id. at 3–4, 13.) The law enforcement
crash report lists Ailes’ address as the house in Florida bought by his parents in
2016. (Id. at 9.)
The Conants filed suit against Ailes, and his insurer, The Cincinnati
Insurance Company, in Montana State Court on October 29, 2021. (See generally
Doc. 1-1.) This lawsuit brings several state law claims stemming from the July 12,
2019, accident. (Id.) The operative complaint alleges the Conants and Ailes are
Montana residents. (Id. at 1–2.) No residency or citizenship allegation is made as
to Cincinnati. (See Id. at 2.) With Cincinnati’s consent, Ailes removed the lawsuit
to this Court on May 18, 2022. (Doc. 1.) The notice of removal argues this Court
has diversity jurisdiction under 28 U.S.C. §§ 1332, 1441(b). (Id. at 2.) The
Contants have moved to remand based on incomplete diversity, arguing that Ailes,
like themselves, is a Montana resident. (See generally Doc. 9.) For the reasons
stated herein, the Court disagrees and denies the motion.
ANALYSIS
“The right of removal is entirely a creature of statute and ‘a suit commenced
in a state court must remain there until cause is shown for its transfer under some
act of Congress.’” Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 32 (2002).
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The act of Congress at issue here permits the removal of actions filed in state court
when they fall within the original jurisdiction “of the district courts of the United
States.” 28 U.S.C. 1441(a). District court have original jurisdiction over “civil
actions where the matter in controversy exceeds the sum or value of $75,000 . . .
and is between . . . citizens of different states.” 28 U.S.C. § 1332(a)(1). Exercise
of the jurisdiction conferred by this statute is textually conditioned on “complete
diversity,” meaning “the citizenship of each plaintiff is diverse from the citizenship
of each defendant.” Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996); Id. at n.3.
In other words, when a defendant is sued in state court they may remove the
action to federal court as long as the amount in controversy is over $75,000 and
each defendant hails from a different state than the plaintiff(s).3 Although
“diversity of citizenship is [ordinarily] assessed at the time the action is filed,”
Freeport-McMoRan, Inc. v. K N Energy, Inc., 498 U.S. 426, 428 (1991), the
Supreme Court has endorsed the notion that in removal cases, diversity should be
assessed “at the time of removal,” see Caterpillar Inc., 519 U.S. at 471. Putting
these two temporal assessments together, the Ninth Circuit requires complete
diversity both at the “time the complaint is filed and removal is effected.” Strotek
3

There is another limitation worth mentioning here—which prevents a defendant from removing
a case based on diversity jurisdiction (even when such jurisdiction exists) if they are “a citizen of
the State” where “the action is brought.” 28 U.S.C. § 1441(b)(2); see also Caterpillar Inc., 519
U.S. at 472. Relevant here, if the Conants were correct that Ailes is a Montana citizen for
diversity jurisdiction purposes, then his removal of this case could be invalidated on that
statutory basis alone.

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Corp. v. Air Trans. Ass’n of Am., 300 F.3d 1129, 1132 (9th Cir. 2002) (emphasis
added).
At this point, it is helpful to note that nobody disputes the following facts:
(1) the Conants, at the time this action was filed and removed, were citizens of
Montana; (2) Cincinnati, at the time this action was filed and removed, was a
citizen of Ohio; and (3) the amount in controversy exceeds $75,000. (Docs. 1 at 2;
2 at 2; 9 at 2; 10-1 at 2.) Consequently, the inquiry is whether Ailes is fairly
characterized as a Montana citizen when the complaint was filed—October 29,
2021—and when it was removed to this Court—May 18, 2022. (Docs. 1; 1-1.)
For human beings, like Ailes, state citizenship is determined by “state of
domicile, not [] state of residence.” Kanter v. Warner-Lambert Co., 265 F.3d 853,
857 (9th Cir. 2001). A person is domiciled in their “permanent home” which is
where they reside “with the intention to remain” or where they “intend[] to return.”
Id. (adding “Residence is physical, whereas domicile is generally a compound of
physical presence plus an intention to make a certain definite place one’s
permanent abode, though, to be sure, domicile often hangs on the slender thread of
intent alone, as for instance where one is a wanderer over the earth. Residence is
not an immutable condition of domicile”). In this case, the Court concludes Ailes
was not domiciled in Montana either at the time the underlying lawsuit was filed or
when the notice of removal was filed.
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The Court begins by noting that before the accident occurred Ailes spent
about two years in Montana finishing his secondary education. But this does not
mean he was ever domiciled here. For most of his time here, Ailes was a minor,
and a minor’s domicile is generally “determined by reference to that of some other
persons,” such as the minor’s parents. Safeco Ins. Co. of Am. v. Mirczak, 662
F.Supp. 1155, 1157 (D. Nev. 1987). Ailes’ affidavit establishes that during this
period, his parents were domiciled in Florida, where they resided and owned the
family’s primary residence. (Doc. 11-1 at 2.) Even during the few month period
when Ailes was 18 but still residing in Montana, the Court cannot fairly conclude
he was domiciled here. Indeed, immediately after graduating Ailes left Montana
for college in Michigan, only to return for a vacation a year later.
If he was not domiciled in Montana prior to graduating high school and
leaving for college, it is difficult for the Court to conclude he has become
domiciled here at any time since then. Indeed, all the tell-tale signs of domicile
point to Florida. Ailes maintains his primary residence there, he votes there, pays
federal income taxes there, and maintains resident only permits there, such as for a
concealed weapon and saltwater shoreline fishing. The Conants’ reference to
Ailes’ Facebook page and a newspaper article from 2018 is unavailing. On this
Facebook page Ailes maintains, his “Current city” is listed as “Kalispell,
Montana.” (Doc. 10-2 at 17.) There was also a Tribune Chronicle article
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published on October 15, 2018, which noted that Ailes was “a freshman in college”
who hoped to eventually enter “politics in his new home in Montana, where he
raises horses.” (Doc. 10-4 at 4.)
The Court finds Ailes’ explanations about these items entirely plausible.
Specifically, Ailes avers he would have listed Kalispell on his Facebook page back
when he lived there in 2017 and 2018 and that the article, which does not utilize
direct quotes, stemmed from him telling the reporter he had previously lived in
Montana and hoped to return one day. (Doc. 11-1 at 5.) The Court is persuaded
Ailes has simply not updated his listed residence on this social media page since he
graduated high school. Moreover, the article, combined with Ailes’ clarification,
can at best be read for the proposition that Ailes had enjoyed his time in Montana
and hoped to return. But since then, the evidence in the record only points to him
being domiciled in Florida.
The Court need not say more. At both the time this lawsuit was filed in
Montana state court and at the time it was removed to this Court, Ailes was
domiciled, if anywhere, in Florida, not Montana. As such, he is not a citizen of
Montana for diversity purposes. Consequently, this Court can properly exercise
diversity removal jurisdiction in this case. Nobody will be awarded costs or fees
expended in filing or responding to the Conants’ remand motion.
Accordingly, IT IS ORDERED the remand motion (Doc. 9) is DENIED.
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The previously ordered preliminary pretrial conference (Doc. 8) will proceed as
scheduled.
DATED this 2nd day of August, 2022.

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