ESTATE OF ABDELRAZIG KHALIL BY KAMAL MOHAMEDALI ADMINISTRATOR v. MURSALOV et al
Filing
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MEMORANDUM RE: Because Defendants are citizens of Pennsylvania and Khalil was a citizen of North Carolina, I exercise diversity jurisdiction over this action. Therefore, I will deny the Estates motion to remand for lack of jurisdiction. SIGNED BY HONORABLE ANITA B. BRODY ON 11/16/21. 11/17/21 ENTERED AND COPIES E-MAILED.(jwl, )
Case 2:21-cv-01888-AB Document 29 Filed 11/17/21 Page 1 of 8
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF PENNSYLVANIA
ESTATE OF ABDELRAZIG KHALIL
BY KAMAL MOHAMEDALI
ADMINISTRATOR,
Plaintiff,
v.
RUSTAM MURSALOV, et al.,
Defendants.
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November 16, 2021
CIVIL ACTION
NO. 21-1888
Anita B. Brody, J.
MEMORANDUM
Abdelrazig Khalil was standing on the side of the highway when he was struck and killed
by a passing vehicle. Khalil was a passenger in a semi-trailer truck driven by Defendant Rustam
Mursalov and owned by Defendant Eastern Express, Inc. Mursalov had pulled the truck over
onto the side of the highway because the cargo load had been improperly secured for transport.
Khalil was standing next to the truck when he was killed.
Plaintiff Kamal Mohamedali, in his capacity as the administrator of the Estate of
Abdelrazig Khalil (the “Estate”), brings state law claims against Defendants for the death of
Khalil, pursuant to Pennsylvania’s wrongful death and survival statutes, 42 Pa. Stat. and Cons.
Stat. Ann. §§ 8301-02. Although the Estate commenced this action in the Philadelphia Court of
Common Pleas, Defendants removed this action to federal court on the basis of diversity
jurisdiction under 28 U.S.C. § 1332. 1
Defendants removed this action pursuant to 28 U.S.C. § 1441. A defendant can remove “any civil action
brought in a State court of which the district courts of the United States have original jurisdiction.” 28
U.S.C. § 1441(a).
1
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Federal district courts have diversity jurisdiction over civil actions where the amount in
controversy “exceeds the sum or value of $75,000” and is between “citizens of different States.”
28 U.S.C. 1332(a)(1). “If a party is deceased, ‘the legal representative of the estate of a decedent
shall be deemed to be a citizen only of the same State as the decedent.’” McCann v. Newman
Irrevocable Tr., 458 F.3d 281, 286 (3d Cir. 2006) (quoting 28 U.S.C. § 1332(c)(2)). The Estate
contends that diversity jurisdiction does not exist and moves to remand this action to the
Philadelphia Court of Common Pleas. 2 The Estate argues that the Court lacks diversity
jurisdiction because the parties are not citizens of different states. Although the parties agree that
Defendants are citizens of Pennsylvania, the Estate argues that Khalil, the decedent, was also a
citizen of Pennsylvania. In contrast, Defendants argue that completely diversity exists because
Khalil was a citizen of North Carolina.
On November 9, 2021, the Court held an evidentiary hearing. Based on the findings of
fact from the evidentiary hearing, I conclude that Khalil was a citizen of North Carolina.
Therefore, I will deny the Estate’s motion to remand for lack of jurisdiction.
I. FINDINGS OF FACT
On November 21, 2021, the Court held an evidentiary hearing to determine whether
Khalil was a citizen of North Carolina or Pennsylvania. After reviewing the evidence submitted
for the hearing, I make the following findings of fact:
For at least a decade, Khalil lived and worked in North Carolina. Mohamed Idress Dep.
29:3-5, 45:4-6; Ex. D-4 at 3. During that time, Khalil obtained a North Carolina driver’s license
and registered to vote in North Carolina. Ex. D-2 ¶3; Ex. D-3.
The Estate moves to remand pursuant to 28 U.S.C. § 1447(c), which provides: “If at any time before
final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be
remanded.” 28 U.S.C. § 1447(c).
2
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In 2018, Khalil moved to Philadelphia to get his commercial driver’s license (“CDL”)
because he wanted to “drive trucks around the nation.” Idress Dep. 7:21-8:7, 16:17-20. For a
short period of time, Khalil lived in Philadelphia with his friend, Abbel Azziz Yagab. P-1 ¶¶ 4-5.
Khalil then moved to a house owned by Mohamed Idress located on Nesper Street in
Philadelphia. Idress Dep. 9:2-4.
Khalil lived in a bedroom in the basement of the Nesper Street house that also had a little
kitchen and bathroom. Idress Dep. 31:3-22. Idress used the remainder of the basement as an
office, and he rented the upper floor of the Nesper Street house to someone else. Idress Dep.
31:3-22. Khalil never paid rent and he did not contribute to any of the bills for utilities or cable
during the time he lived at the Nesper Street house. Idress Dep. 50:7-51:9. Khalil kept clothes
and toiletries at the Nesper Street house, but he did not keep any personal belongings there, like
photographs. Idress Dep. 60:13-16. Khalil never received any mail at the Nesper Street house.
Khalil lived at the Nesper Street house for approximately six months. Idress Dep. 9:2025. During that time period, he travelled to North Carolina five or six times. Idress Dep. 10:1015. He typically stayed in North Carolina for two days but on one occasion, he stayed there for a
week. Idress Dep. 10:16-19. During his week-long stay, Khalil renewed his North Carolina
driver’s license. Idress Dep. 10:18-11:1, 48:11-16.
While in Philadelphia, Khalil worked to obtain his CDL and began employment in
Pennsylvania as a national truck driver. Idress Dep. 12:4-10; Ex. P-2 ¶ 3; Ex. P-5. When Khalil
applied for employment as a truck driver for DZ Transport LLC, he listed the Nesper Street
house as his address on his employment application and the accompanying IRS Form W-9. Ex.
P-3; Ex. D-4 at 2. He also listed that he had a North Carolina driver’s license. Ex. D-4 at 3.
Case 2:21-cv-01888-AB Document 29 Filed 11/17/21 Page 4 of 8
Khalil lived in Pennsylvania for approximately six to seven months. 3 During the time he
lived in Pennsylvania, Khalil never registered to vote in Pennsylvania and he never changed his
driver’s license from North Carolina to Pennsylvania. Ex. D-2 ¶¶ 2-4. Although he owned a car,
it was not registered in Pennsylvania. Idress Dep. 48:6-8; Ex. D-2 ¶ 13. Khalil had no form of
identification that listed him as a Pennsylvania resident. Ex. D-2 ¶ 9.
On April 19, 2019, Khalil was standing on the side of a highway when he was struck and
killed by a passing vehicle. At the time of his death, Khalil’s belongings were located in
Pennsylvania, North Carolina, and the truck he was in on the day of his death. Idress Dep. 41:1013, 57:25-58:20. On his death certificate, Khalil was listed as a resident of North Carolina. Ex.
D-5. Khalil was buried in North Carolina and his estate was administered in North Carolina. Ex.
D-1; Ex. D-5.
II. CONCLUSIONS OF LAW
The parties agree that Defendants are citizens of Pennsylvania. Defendants removed this
case to federal court on the basis of diversity jurisdiction, arguing that the parties are diverse
because North Carolina was Khalil’s domicile. The Estate moves to remand this case for lack of
jurisdiction because it contends that Pennsylvania was Khalil’s domicile.
The party invoking diversity jurisdiction bears the burden of proof. Washington v.
Hovensa LLC, 652 F.3d 340, 345 (3d Cir. 2011). A party meets this burden by proving diversity
of citizenship between the parties by a preponderance of the evidence. McCann, 458 F.3d at
290.
“Citizenship is synonymous with domicile, and ‘the domicile of an individual is his true,
fixed and permanent home and place of habitation. It is the place to which, whenever he is
The evidence does not state the exact amount of time that Khalil lived in Pennsylvania. Plaintiff’s
counsel, however, conceded at the hearing that Khalil lived in Pennsylvania for only six or seven months.
3
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absent, he has the intention of returning.’” McCann, 458 F.3d at 286 (quoting Vlandis v. Kline,
412 U.S. 441, 454 (1973)). “[D]omicile is established by an objective physical presence in the
state or territory coupled with a subjective intention to remain there indefinitely.” Washington,
652 F.3d at 344. When determining a person’s domicile, a court considers factors, including
declarations, place of employment, exercise of political rights, payment of personal taxes, house
of residence, place of business, location of brokerage and bank accounts, location of spouse and
family, membership in unions and other organizations, and driver’s license and vehicle
registration. McCann, 458 F.3d at 286. “More generally, the court must locate ‘the center of
one’s business, domestic, social and civic life.’” Washington, 652 F.3d at 344 (quoting FrettSmith v. Vanterpool, 511 F.3d 396, 401 (3d Cir. 2008)).
An individual’s domicile changes immediately when the individual takes residence at the
new domicile and intends to remain there. McCann, 458 F.3d at 286. “But ‘[a] domicile once
acquired is presumed to continue until it is shown to have been changed.’” Id. (quoting Mitchell
v. United States, 88 U.S. 350, 353 (1874)). Thus, there exists “a presumption favoring an
established domicile over a new one.” Id. at 286-87. “The party claiming a new domicile bears
the initial burden of producing sufficient evidence to rebut the presumption in favor of the
established domicile.” Id. at 288. “This presumption does not shift the burden of proof to
establish diversity of citizenship away from the proponent of federal jurisdiction . . . .”
Washington, 652 F.3d at 345. “Accordingly, the presumption’s only effect is to require the party
asserting a change in domicile to produce enough evidence substantiating a change to withstand
a motion for summary judgment or judgment as a matter of law on the issue.” McCann, 458 F.3d
at 288. “If the party does so, the presumption disappears, the case goes forward, and the party
asserting jurisdiction bears the burden of proving diversity of citizenship.” Id.
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Khalil lived in North Carolina for at least a decade. He then lived in Pennsylvania for six
or seven months before his death. Both parties agree that there exists a presumption favoring
Khalil’s established domicile—North Carolina—over a new one. The Estate seeks to overcome
this presumption and contends that Khalil changed his domicile from North Carolina to
Pennsylvania. Because the Estate claims that Khalil changed his domicile, it bears the initial
burden to produce sufficient evidence to overcome the presumption that Khalil remained
domiciled in North Carolina. If the Estate overcomes its initial burden, the presumption
disappears and Defendants, who are asserting jurisdiction, bear the burden of proving by a
preponderance of evidence that Khalil’s domicile was North Carolina.
The Estate is unable to overcome the presumption in favor of Khalil’s established
domicile—North Carolina. Moreover, even if the Estate could overcome its initial burden of
production, Defendants have established by a preponderance of the evidence that Khalil’s
domicile was North Carolina.
The Estate has produced meager evidence to show that Khalil intended to remain
indefinitely in Pennsylvania. To establish that Khalil intended to remain in Pennsylvania
indefinitely, the Estate highlights that Khalil lived in Pennsylvania for six to seven months; he
began employment in Pennsylvania; and he listed a Pennsylvania address on both his application
for employment and the accompanying IRS Form W-9. These facts are insufficient to rebut the
presumption that North Carolina remained Khalil’s domicile.
The evidence establishes that Khalil moved to Pennsylvania to obtain his CDL in order to
work as a national truck driver. That Khalil worked for Pennsylvania trucking company, has little
bearing on whether Khalil intended to remain in Pennsylvania given that Khalil’s job as a truck
driver required extensive and frequent travel outside of the state. Moreover, Khalil’s use of a
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Pennsylvania address on his employment application and IRS Form W-9 only reflect that Khalil
was living at the Nesper Street house when he filled out the paperwork. It does not reflect that
Khalil intended to remain indefinitely in Pennsylvania. If anything, the paperwork might convey
that Khalil intended to remain domiciled in North Carolina, as he indicated on his application
that he had a North Carolina driver’s license.
Lastly, the six or seven months that Khalil lived in Philadelphia are not proof that he
intended to remain indefinitely in Pennsylvania. During the six months that Khalil lived at the
Nesper Street house, he did not pay rent or utilities, he received no mail, and he kept no personal
belongings in his basement room. While living at the Nesper Street house, Khalil returned to
North Carolina five or six times and stayed for at least two days each time. On one occasion he
stayed in North Carolina for a week and renewed his North Carolina driver’s license. Although
Khalil was registered to vote and obtained his driver’s license in North Carolina, he never
registered to vote in Pennsylvania, never registered his car in Pennsylvania, and never sought to
obtain a Pennsylvania driver’s license. Khalil also never moved all of his belongings to
Pennsylvania.
At the time of his death, Khalil did not have a single form of identification that listed him
as a Pennsylvania resident. Despite the fact that Khalil was living in Pennsylvania, his death
certificate listed him as a North Carolina resident and his body was buried in North Carolina.
Additionally, his estate was administered in North Carolina.
Even if the Estate could overcome the presumption that Khalil remained domiciled in
North Carolina, Defendants have established by a preponderance of the evidence that Khalil’s
domicile was North Carolina.
Case 2:21-cv-01888-AB Document 29 Filed 11/17/21 Page 8 of 8
Because Defendants are citizens of Pennsylvania and Khalil was a citizen of North
Carolina, I exercise diversity jurisdiction over this action. Therefore, I will deny the Estate’s
motion to remand for lack of jurisdiction.
_s/ANITA B. BRODY, J.____
ANITA B. BRODY, J.
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