Curole et al v. Burger King Corporation

Filing 31

ORDER Denying Plaintiff's 9 Motion to Remand to State Court. Signed by Judge Jennifer A. Dorsey on 1/26/2016. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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HOLLIE CUROLE,

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2:15-cv-01639-JAD-CWH

Plaintiff

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v.

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Order Denying Plaintiff’s Motion to
Remand

BURGER KING CORP., et al.,

[ECF 9]

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Defendant

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Plaintiff Hollie Curole sues Burger King Corp. and one of its employees, Taryn Barnes,

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for injuries that Curole allegedly sustained as a passenger in a car accident between Curole’s

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vehicle and one that Barnes was driving as part of her employee duties.1 Burger King removed

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the case from state court based on diversity of citizenship.2 Both defendants later sued Anthony

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Ramos, the driver of Curole’s vehicle during the accident, as a third-party defendant.3 Curole

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now moves to remand, arguing that complete diversity is lacking because Barnes was—and

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Ramos is—a Nevada citizen.4 I deny Curole’s motion because Barnes was a California citizen at

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the time that Curole filed suit, and a defendant’s decision to sue a third-party defendant does not

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affect federal-court jurisdiction over claims between original parties.
Background

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Burger King claims diversity under 28 U.S.C. § 1332 as the basis of federal subject-

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matter jurisdiction over this case.5 Curole alleges that she resides in Clark County, Nevada.6

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ECF 9 at 2.

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ECF 1.

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ECF 2; ECF 17.

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ECF 9 at 4.

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ECF 1 at 2.

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Id. at 6.

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Burger King purports to be a Florida corporation with its principal place of business in Florida.7

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Barnes alleges that she resides in California;8 however, Curole claims that Barnes is actually a

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Nevada resident, citing the traffic-collision report from the accident.9 Curole argues that the

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report “clearly demonstrates that Ms. Barnes was a Nevada resident and ‘citizen’” at the time of

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the accident.10 The report does list a Nevada address for Barnes.11 Finally, Ramos alleges that he

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is a Nevada resident.12

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Curole moves to remand this case to state court, arguing that Burger King’s removal of

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the case was defective and that Barnes’s alleged Nevada residency at the time of the accident, as

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well as Ramos’s current Nevada residency, destroys complete diversity.

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Discussion

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A defendant may remove a suit from state to federal court based on diversity of

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citizenship.13 Under 28 U.S.C. § 1332(a)(1), “[t]he district courts shall have original jurisdiction

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of all civil actions where the matter in controversy exceeds the sum or value of $75,000,

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exclusive of interest and costs, and is between citizens of different states.” “For a case to qualify

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for federal jurisdiction under 28 U.S.C. § 1332(a), there must be complete diversity of citizenship

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between the parties opposed in interest.”14 Citizenship is based on an individual’s domicile—“a

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location where he or she has established a fixed habitation or abode in a particular place, and

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Id. at 2.

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ECF 17 at 6.

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ECF 9 at 4.

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Id.

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See ECF 9-1 at 4.

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ECF 28-1 at 3.

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28 U.S.C. § 1441.

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Kuntz v. Lamar Corp., 385 F.3d 1177, 1181 (9th Cir. 2004) (citing Strawbridge v. Curtiss, 7
U.S. (3 Cranch) 267, 267, 2 L.Ed. 435 (1806)).
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intends to remain there permanently or indefinitely.”15 “[T]he existence of domicile for purposes

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of diversity is determined as of the time the lawsuit is filed.”16

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“Federal courts are courts of limited jurisdiction.”17 There is a strong presumption

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against removal jurisdiction, and “federal jurisdiction must be rejected if there is any doubt as to

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the right of removal in the first instance.”18 Therefore, the defendant always has the burden of

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establishing that removal is proper.19 If the court finds that the parties to the suit are not diverse,

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it should remand the case to state court under 28 U.S.C. § 1447(c).

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Curole first contends that Burger King made a “fatal flaw” in its notice of removal by

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“only alleg[ing] residency of Ms. Barnes and fail[ing] to allege citizenship.”20 Curole cites non-

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binding case law to support her proposition that Burger King’s choice of words (i.e., that Barnes

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is a “resident” rather than a “citizen” of California) renders the removal defective.21 I need not

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reach the legal merits of this argument because it is factually inaccurate. Along with its notice of

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removal, Burger King filed a “statement concerning removal” that explicitly asserts that Barnes

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“is a citizen of the State of California.”22 This argument is therefore baseless.

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Curole next argues that Barnes “was a Nevada citizen at the time of the subject motor

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vehicle crash that also occurred in Nevada.”23 As Burger King correctly responds, diversity is

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based on a defendant’s domicile at the time the plaintiff files suit, rather than when a controversy

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Lew v. Moss, 797 F.2d 747, 749 (9th Cir. 1986) (internal quotation marks and brackets
omitted).

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Id.

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Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).

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Gaus v. Miles, 980 F.2d 564, 566 (9th Cir. 1992).

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Id.

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ECF 9 at 3–4.

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Id. (citing Nasco, Inc. v. Norsworthy, 785 F. Supp. 707 (M.D. Tenn. 1992)).

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ECF 3 at 2.

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ECF 9 at 4.

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arises.24 Barnes’s possible Nevada residency at the time of the car accident is therefore irrelevant

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in assessing the parties’ diversity. Instead, Burger King asserts that Barnes was a California

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citizen at the time Curole filed suit, and it provides a copy of Barnes’s California driver’s license,

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issued months before this suit commenced, and an auto-insurance bill addressed to Barnes at a

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California address.25 Based on this evidence, I am satisfied that Barnes was domiciled in

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California when Curole filed suit. Because neither defendant is domiciled in Nevada, complete

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diversity exists.
Finally, Curole briefly argues that the inclusion of third-party defendant Ramos,26 an

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alleged Nevada citizen, also destroys diversity. This argument fails because diversity is required

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between “parties opposed in interest.”27 An impleaded third-party defendant is not adverse to the

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original plaintiff and therefore does not affect the diversity between the original parties.28

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Conclusion

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Accordingly, IT IS HEREBY ORDERED that Curole’s Motion to Remand [ECF 9] is

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DENIED.

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Dated: Dated: January 26, 2016.
January 26, 2016

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_______________________________
_______ _____________
_ __
____ __ _
_
Jennifer A. Dorsey
Jennifer Dorsey
en
n
r
e
United States District Judge
United States District Jud
it
it d
strict
t

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Strotek Corp. v. Air Transp. Assn. of Am., 300 F.3d 1129, 1131 (9th Cir. 2002); Lew, 797 F.2d
at 749.

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ECF 15 at Ex. A, Ex. B.

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Burger King and Barnes impleaded Ramos under FRCP 14. ECF 2; EFC 17.

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Kuntz, 385 F.3d at 1181.

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Spring City Corp. v. Am. Bldgs. Co., 193 F.3d 165, 169 (3d Cir. 1999).

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