Wheaton v. Knight Transportation, Inc.

Filing 36

ORDER Granting 11 Motion to Remand to State Court, and this case is remanded to Nevadas Eighth Judicial District Court, Case No. 16-735987-C. Signed by Judge Jennifer A. Dorsey on 11/28/16. (Copies have been distributed pursuant to the NEF - CC: Certified Copy of Order and Docket Sheet Sent to State Court - ADR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Kenneth Dewayne Wheaton,
2:16-cv-01220-JAD-NJK

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Plaintiff

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v.

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Knight Transportation, Inc., et al.,

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Order Granting Motion to Remand
[ECF No. 11]

Defendants

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Plaintiff Dewayne Wheaton sues Knight Transportation, Inc. and its employee, John Tucker,

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for injuries Wheaton sustained when Tucker, while driving a vehicle owned by Knight, collided with

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Wheaton’s vehicle in North Las Vegas, Nevada. Knight removed this action, claiming that Tucker is

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a resident of Arizona and invoking this court’s diversity jurisdiction. Wheaton moves to remand,

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arguing that Knight has failed to carry its burden to show that this court has jurisdiction over

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Wheaton’s state-law claims. I agree, grant Wheaton’s motion, and remand this case back to state

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court.1

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Discussion
A.

Removal jurisdiction and diversity of citizenship
“Federal courts are courts of limited jurisdiction.”2 Accordingly, there is a strong

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presumption against removal jurisdiction, and “federal jurisdiction must be rejected if there is any

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doubt as to the right of removal in the first instance.”3 The defendant always has the burden of

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establishing that removal is proper.4 A defendant may remove any action brought in state court over

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which the federal district courts have original jurisdiction. One category of cases over which the

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I find this matter suitable for disposition without oral argument. L.R. 78-1.

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

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

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Id.

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Page 1 of 4

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district courts have original jurisdiction are “diversity” cases in which (1) there is diversity of

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citizenship between each plaintiff and each defendant and (2) the amount in controversy exceeds

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$75,000.5 The parties do not dispute that the amount-in-controversy requirement is met or that

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Knight’s citizenship—as an Arizona corporation that maintains its principal place of business

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there—is diverse from Wheaton’s. The only dispute is Tucker’s citizenship.

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A natural person’s state of citizenship is “determined by [his] state of domicile, not [his] state

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of residence. A person’s domicile is [his] permanent home, where [he] resides with the intention to

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remain or to which []he intends to return.”6 As the party seeking to invoke this court’s jurisdiction,

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Knight bears the burden of establishing that jurisdiction exists.

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In its notice of removal, Knight alleges that “Mr. Tucker at the time of the filing of the above-

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entitled action, and still is, a citizen of the State of Arizona. Mr. Tucker has resided in Arizona for

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approximately one year and he has no intention of moving out of Arizona.”7 Knight attaches a

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declaration from Tucker (executed in California) echoing this statement but including no further

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information.8 Though Tucker declares that he has resided in Arizona for one year, he does not

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indicate when he developed his intention to permanently remain there.

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B.

Knight has not met its burden to show that removal is proper based on Tucker’s
citizenship in light of the contrary evidence that Wheaton has provided.

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Wheaton attaches to his remand motion the police report from the accident, which lists

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Tucker’s address as Reno, Nevada.9 Wheaton also attaches the affidavit of due diligence that he

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filed in the state district court. The affiant, a process server for the investigation company that

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Wheaton hired to locate and serve Tucker, states that, despite the company’s best efforts, it was

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28 U.S.C. § 1332(a)(1).

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Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001) (internal citations omitted).

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ECF No. 1 at ¶ 4.

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ECF No. 1-3.

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ECF No. 11-1.

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Page 2 of 4

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unable to locate Tucker or discover a current address in Nevada or in Arizona to effectuate service.10

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She further states that she contacted the Nevada Department of Motor Vehicles for a current address

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for Tucker; a representative told her that Tucker currently had a valid Nevada commercial driver’s

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license that would expire on August 18, 2018.11 The physical address on Tucker’s Nevada

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commercial driver’s license matched the Reno, Nevada, address recorded in the police report, and

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the representative provided a separate Sparks, Nevada, mailing address for Tucker.12 The affiant

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represents that the company also searched the “Tracers” database for Tucker, which returned his

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most recent address as the Sparks, Nevada, mailing address provided by the DMV.13 The summons

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reflects that Tucker was ultimately served via the Nevada Department of Motor Vehicles in Carson

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City, Nevada.14

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In response, Knight provides another declaration from Tucker—executed in Reno,

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Nevada—in which he represents that he stopped service at the Sparks, Nevada, mailbox at an

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undisclosed date and rented a mail drop box and a storage unit and purchased property in Yuma,

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Arizona, “[p]rior to the filing of Plaintiff’s lawsuit.”15 He attaches an undated envelope from the

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Arizona Motor Vehicle Division addressed to the address on his Yuma mailbox,16 an Arizona

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commercial driver’s license issued after this case was filed,17 and a land-sale contract showing that

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Tucker purchased a one-acre parcel of property in Yuma, Arizona, shortly before this case was

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ECF No. 11-4 at ¶ 17.

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Id. at ¶ 3.

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Id.

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Id. at ¶ 4.

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ECF No. 11-5 at 4.

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ECF No. 17-1.

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ECF No 17-2.

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ECF No. 17-4.

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Page 3 of 4

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filed.18

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I find that Wheaton has sufficiently rebutted Tucker’s conclusory citizenship allegations, and

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I am left unpersuaded by the documentary evidence that Tucker has provided in support of those

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allegations that diversity jurisdiction exists in this case. Based on this record, I find that removal was

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not proper because it appears that Tucker was a citizen of Nevada when this case was filed,

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destroying diversity, so I grant Wheaton’s motion and remand this case back to state court.

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Conclusion

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Accordingly, IT IS HEREBY ORDERED, ADJUDGED, and DECREED that Wheaton’s
motion to remand [ECF No. 11] is GRANTED, and this case is remanded to Nevada’s Eighth
Judicial District Court, Case No. 16-735987-C.

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Dated this 28th day of November, 2016.

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_________________________________
____________________
_ _ ___ _ _
Jennifer A. Dorsey
nnifer .
fe
fe
y
United States District Judge
nited States District Judg
d ta
rict
i

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ECF No. 17-3.
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