Moyle v. Clarke et al

Filing 147

MEMORANDUM OPINION - Moyle's domicile was Nebraska in December 2012, and the Court lacks subject matter jurisdiction. Accordingly, the judgment of the Court (Filing No. 108 ) will be set aside and the Court will dismiss the action pursuant to F ederal Rule of Civil Procedure 12(h)(3). See In re Prairie Island Dakota Sioux, 21 F.3d 302, 304 (8th Cir. 1994) (citing Bueford v. Resolution Trust Corp., 991 F.2d 481, 485 (8th Cir. 1993); Fed. R. Civ. Pro. 12(h)(3)). The Court does not address the alternative arguments for new trial or remittitur. A separate order will be entered in accordance with this memorandum opinion. Ordered by Senior Judge Lyle E. Strom. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
WILLIAM J. MOYLE,

)
)
Plaintiff,
)
)
v.
)
)
CONCRETE INDUSTRIES, INC.,
)
and ROGER T. CLARKE,
)
)
Defendants
)
)
v.
)
)
MECHANICAL SYSTEMS, INC., and )
ACUITY INSURANCE COMPANY, its )
workers’ compensation insurer,)
)
Intervenors/Defendants. )
______________________________)

8:12CV434

MEMORANDUM OPINION

This matter is before the Court on defendants' motion
(Filing No. 124) for relief from judgment pursuant to Federal
Rule of Civil Procedure 60(b) for lack of subject matter
jurisdiction.

Alternatively, the defendants move for a

remittitur or new trial pursuant to Federal Rule of Civil
Procedure 59(a).

The defendants have filed a brief (Filing No.

125) and index of evidence (Filing No. 126) in support of that
motion.

Plaintiff Moyle filed a brief (Filing No. 137) and index

of evidence (Filing No. 138) in opposition of the motion.
Intervenors Mechanical Systems, Inc. and Acuity Insurance Co.
also filed a brief (Filing No. 139) in opposition of the motion.

The defendants filed their final brief (Filing No. 142),
declaration (Filing No. 143), and index of evidence (Filing No.
145).
I.

BACKGROUND
The plaintiff is William Moyle (“Moyle”).

The

defendants are Roger Clarke, his employer, Concrete Industries of
Nebraska City, Nebraska, and its owner, NEBCO Incorporated.

All

defendants are domiciled in Nebraska (Id. at 2-4).
This action arises from a traffic accident in Cass
County, Nebraska, that occurred on October 31, 2012.

That day,

Moyle drove his company’s Ford F450 pickup truck northbound on
United States Highway 75.

Clarke was also driving northbound on

Highway 75 in his employer’s concrete mixer truck.

Clarke was

operating the truck in the scope of his employment at Concrete
Industries.

As Clarke attempted a right turn onto Highway 34,

the vehicles driven by Moyle and Clarke collided.

The momentum

of Moyle’s truck and the collision caused his vehicle to leave
the roadway and turn on its roof.

During the course of these

events, Moyle was left a paraplegic.

The plaintiff, Moyle, filed

the instant action alleging negligence.

The defendants, Clarke,

Concrete Industries, and NEBCO, filed counter claims against
Moyle for negligence.

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On January 28, 2014, after a six-day trial, a jury of
twelve reached a unanimous verdict for the plaintiff (Filing No.
108) in the amount of $19,607,486.00.

The issue before the Court

concerns diversity jurisdiction.
II.

SUBJECT MATTER JURISDICTION
Moyle asserts federal jurisdiction under 28 U.S.C.

§ 1332 as a citizen of Montana.

Filing No. 1.

Under that

section, district courts have original subject matter
jurisdiction in all civil matters where the controversy exceeds
$75,000 and exists between citizens of different states.
U.S.C. § 1332.

28

Moyle, as the party seeking federal forum, has

the burden of establishing jurisdiction by a preponderance of the
evidence.

See Yeldell v. Tuft, 913 F.3d 533, 537 (8th Cir. 1990)

(citing Blakemore v. Mo. Pac. R.R., 789 F.2d 616, 618 (8th Cir.
1986)).

Diversity jurisdiction requires each defendant to be a

citizen of a different state from each plaintiff.

See id.

(citing Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373
(1978)).
The “determination of citizenship for the purpose of
diversity is a mixed question of law and fact, but mainly fact.”
Altimore v. Mt. Mercy Coll., 420 F.3d 763, 768 (8th Cir. 2005)
(citing Blakemore, 789 F.2d at 618).

Simultaneous physical

presence and intent to remain in a state indefinitely create
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citizenship in that state.

See id. (citing Yeldell, 913 F.2d at

537); see also Homes v. Sopuch, 639 F.3d 431, at 433 n.2
Cir. 1981).

(8th

The existence of diversity of citizenship is

determined at the time the suit is instituted, and not when the
cause of action arose.

Yeldell, 913 F.2d at 537 (citing Smith v.

Snerling, 354 U.S. 91, 93 n. 1 (1957)).
A.

FACTS
Moyle has consistently claimed citizenship in Montana

(Filing No. 125, at 2-3).
was mid-2011.

The last time Moyle resided in Montana

Filing No. 126-2, at 7.

After a series of moves,

Moyle settled in North Dakota in October 2011 with a friend, Chad
Heller (“Heller”) (Filing No. 125, at 8; Filing No. 126-2, at 7).
On June 19, 2012, Moyle and Heller traveled to Omaha to see a
concert and they decided to move to Omaha (Filing No. 126-2, at
7).

Moyle and Heller came to Omaha numerous times before the

final move in order to find lodging and work (Id.).

They signed

an eleven-month lease and moved to Omaha (Filing No. 126-2, at
8).

In deposition, Moyle stated that he intended to remain in

Omaha for the duration of the lease and had no plans thereafter
(Id.).
On direct examination, Moyle testified that meeting his
future fiancée was 90% of the reason he moved to Omaha (Id. at
7).

Originally, Moyle lined up a job with a carpet company, but
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after meeting his fiancée in August, Moyle decided the work was
too unstable (Filing No. 126-2, at 15; Filing No. 118, at 7-9),
so Moyle left his old job, joined the union, started “a grown-up
job” at MSI, and planned a career path (Filing No. 118, at 8). At
trial, he testified:
But I figured I was going to be in
Omaha a while, as -- meeting
Paulina so it was time to get a
grown-up job so I joined the union
and I started working for
Mechanical Systems to plot out
basically a career and a path that
I could go down rather than the
uncertainty of carpet. At the time
it was great but I wanted something
a little -- job security, I
suppose.
(Id.).

Because of her, Moyle planned to get the “grown-up job,”

planned on being in Omaha for a while, and wanted job security
(Id.).

From August 2012 until October 31, 2012, the date of the

collision, Moyle moved to Omaha, started a new career, and began
a serious relationship.
From October 31, 2012, until December 2012, Moyle was
hospitalized where he received outpatient care, first in Omaha
and then in Lincoln (Filing No. 126-2 at 3-4).

In Lincoln, Moyle

received therapy at Madonna Rehabilitation Hospital and lived in
“Prairie Crossing” with his fiancée (Id. at 4).

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Moyle filed his complaint against the defendants on
December 19, 2012 (Filing No. 1).

Nearly a year after filing his

complaint, the parties met for a pre-trial conference.

In the

pre-trial order, the parties agreed to “uncontroverted facts”
that may be accepted as established facts for the purposes of the
trial.

The first uncontroverted fact is “William J. Moyle is a

citizen of Montana” (the “Stipulation”).

Filing No. 72.

Moyle

has intermittently traveled to Montana to visit his parents.1
With these facts in mind, the Court begins its analysis.
C.

STIPULATION
The plaintiff relies upon Pittsburgh, C. &. St. L.R.

Co. v. Ramsey, 89 U.S. 322 (hereinafter, “Pittsburgh”) for the
proposition that the Stipulation is binding on the Court.

In

that matter, Ramsey originally brought an action against the
Pittsburgh, Cincinnati, and St. Louis Railway in state court.
Pittsburgh, 89 U.S. at 323-24.

The suit was then transferred to

federal court, which required diversity jurisdiction.

Id.

At

some point, documents concerning the case were destroyed in a
fire.

Id. at 326.

In order to substantiate jurisdiction, the

1

On May 1, 2014, the defendants submitted new evidence to
this Court in the form of a Youtube video. The findings of this
Court are expressly made without consideration of this video, as
its authenticity is unverified and the comments made by Moyle on
video are potentially out-of-context.
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parties stipulated to the fire and that the transfer was in
accordance with statutes.

Id.

The Supreme Court considered the

following:
whether under such circumstances we
are confined to what is in
terms expressed upon the record
sent to us, or whether we may
resort to presumptions to give
effect to what is expressed.
Id. at 327.
The Court found that the restoration of the lost files
was not necessary to support jurisdiction.

Id.

The Court

reasoned that once the documents conferring jurisdiction reached
the Court, the Court was presumed to know their contents and was
permitted to act upon that knowledge.

Id.

admissible “to aid the memory of the court.”

Parol evidence was
Id.

Especially important for the purposes of this motion,
the Court said, “[c]onsent of parties cannot give the courts of
the United States jurisdiction, but the parties may admit the
existence of facts which show jurisdiction, and the courts may
act judicially upon such an admission.”

The Court concluded that

the parties knew jurisdiction was properly asserted, the
documents (though destroyed) would have supported a finding of
proper jurisdiction, and that “the appearance and admission of
the parties was expected and intended to have all the force and

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effect which a restoration of the papers could have.”

Id.

The

Court ruled that lower courts may accept the stipulation as
evidence of jurisdiction, in the absence of proof to the
contrary.

Id. at 323, 328-29.
Moyle’s reliance upon Pittsburgh is misplaced for two

reasons.

First, a stipulation of citizenship is distinguishable

from Pittsburgh when other facts belie that stipulation.

Second,

the admission of citizenship is not merely a question of fact.
Consent to jurisdiction is impermissible.
89 U.S. at 327.

Pittsburgh,

For example, two Nebraska citizens cannot simply

agree among themselves that diversity jurisdiction is satisfied.
In the same manner, stipulations may not be used to
circumvent the diversity requirement, if those stipulations are
otherwise controverted.

It would be equally impermissible for

two Nebraska citizens to stipulate that one is a citizen of
Kansas, and thereby satisfy diversity, despite the facts to the
contrary.

Such a stipulation is tantamount to consent of

jurisdiction.

See Owen Equip. & Elec. Co. V. Kroger, 437 U.S.

365, 368-70, 377 (1978).

Therefore, while the Court will

consider the Stipulation as part of its analysis, it will
consider other facts, particularly those which arose during trial
from the plaintiff himself, to determine whether the requirements
of diversity jurisdiction are satisfied.
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Cf. Pittsburgh, at 323,

328-29 (determining stipulations can establish diversity in the
absence of facts to the contrary); Janzen, 302 F.2d at 424
(same).
Second and contrary to the assertions of the plaintiff,
a stipulation to citizenship does not close the question of
diversity indefinitely, particularly when facts exist to
undermine that stipulation.

See Gander v. Livoti, 250 F.3d 606,

609 (stating stipulations of law are not binding on the court);
see also Blackmore v. Missouri Pac. R. Co., 789 F.2d 616, 618
(8th Cir. 1986) (stating determination of citizenship is a mixed
question of law and fact).

It is well established that subject

matter jurisdiction objections are not waiveable.

See Janzen,

302 F.2d at 424-25; Russell v. New Amsterdam Cas. Co., 325 F.2d
996, 998 (finding no diversity jurisdiction on appeal after trial
was held in the district court and judgment was entered against
the defendant); Yeldell, 913 F.2d at 537; United States v.
Corrick, 298 U.S. 435, 440 (1936).

To the extent that the

Stipulation was one of law and to the extent that facts to the
contrary subvert the Stipulation, the question of Moyle’s
citizenship is open for consideration by this Court and the
Stipulation cannot foreclose the Court’s consideration.

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C.

DOMICILE
Moyle moved to Omaha, Nebraska, on July 19, 2012, and

thereby satisfied the physical presence element of domiciliary
analysis.

However, this fact alone is insufficient to establish

domicile, so the Court must determine whether Moyle intended to
make Nebraska his home.

See Spurgeon v. Mission State Bank, 151

F.2d 702, 705-06 (8th Cir. 1945).
Moyle’s statement of domicile is a factor to consider,
but it is not dispositive, particularly when evaluating his
actions.

See Texas v. Florida, 306 U.S. 398, 424-25 (1939);

Maple Island Farm, Inc. v. Bitterling, 196 F.2d 55, 58 (8th Cir.
1952).

Moyle has repeatedly claimed his parents’ home of Montana

is his primary residence (Filing No. 126-2, at 3, 4).

However,

according to his own testimony, Moyle became enamored with Omaha
during a concert and decided to transition from Fargo.
an eleven-month lease and began working.

He signed

He had no plans after

the lease.
Then, in August 2012, Moyle met his fiancée and decided
to remain in Omaha.

The record shows that Moyle met his fiancée

when he first traveled to Omaha.

Filing No. 118, at 6-7.

was 90% of the reason Moyle moved to Omaha.
in Omaha a while” with his fiancée.

She

Moyle wanted to “be

Id. at 8.

He changed his

work because his ambitions changed; he needed a more stable job
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in order to plant roots in Nebraska.

Moyle’s actions show his

intent to remain in Nebraska indefinitely.
Moyle has the burden to prove he was domiciled in
Montana.

Moyle relies heavily upon the Stipulation to foreclose

analysis of the his domicile.

As discussed previously, the Court

does not consider the Stipulation dispositive.

The Stipulation

on its face does not demonstrate facts to support citizenship in
Montana, but rather, it is a conclusory legal determination.
Therefore, the Court affords the Stipulation little weight.
Also, Moyle asserts that Montana was his residence
partly because he maintained his Montana driver’s license.
Filing No. 138, at 7.

However, he did not actually maintain it.

The Montana DMV sent mail to Moyle at his purported address in
Montana.

Moyle failed to respond and his license was suspended

without his knowledge.

Filing No. 188, at 21-22.

Only after the

accident, three years later, did Moyle learn of the DMV’s mail
and the suspension.

The Court finds that Moyle’s failure to

maintain his Montana license weighs against his contention of
Montana citizenship.
Once Moyle was present in Nebraska and decided to
remain here indefinitely with his fiancée, his change in domicile
occurred.
at 58.

Filing No. 118, at 8; see Maple Island Farm, 196 F.2d

Moyle never established a new domicile elsewhere.
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See

Janzen v. Goos, 301 F.2d 421, 425 (8th Cir. 1962) (citing Ellis
v. Sw. Constr. Co., 260 F.2d 280, 281 (8th Cir. 1958); Desmare v.
United States, 93 U.S. 605 (1877); Restatement of the Law of
Conflict of Laws, § 23).

Moyle has failed to meet his burden to

establish he was a citizen of Montana.

The Court finds Moyle was

domiciled in Nebraska at the time he filed the current action in
federal court.

Therefore, Moyle was domiciled in Nebraska at

that time, and the Court lacks jurisdiction over this matter.
III. CONCLUSION
Moyle’s domicile was Nebraska in December 2012, and the
Court lacks subject matter jurisdiction.

Accordingly, the

judgment of the Court (Filing No. 108) will be set aside and the
Court will dismiss the action pursuant to Federal Rule of Civil
Procedure 12(h)(3).

See In re Prairie Island Dakota Sioux, 21

F.3d 302, 304 (8th Cir. 1994) (citing Bueford v. Resolution Trust
Corp., 991 F.2d 481, 485 (8th Cir. 1993); Fed. R. Civ. Pro.
12(h)(3)).

The Court does not address the alternative arguments

for new trial or remittitur.

A separate order will be entered in

accordance with this memorandum opinion.
DATED this 22nd day of May, 2014.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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