White et al v. Combined Insurance Company

Filing 4

MEMORANDUM re 1 Notice of Removal, filed by Combined Insurance Company Signed by Honorable A. Richard Caputo on 9/13/12. (jam, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ELMER L. WHITE and DEANNA WHITE,
CIVIL ACTION NO. 3:CV-12-1787

Plaintiffs,

(JUDGE CAPUTO)

v.
COMBINED INSURANCE COMPANY,
Defendants.

MEMORANDUM
Presently before the Court is the Notice of Removal filed by Defendant Combined
Insurance Company. (Doc. 1.) Because the Notice of Removal fails to establish that this
Court has subject matter jurisdiction over the action, it will be remanded to state court
unless Defendant can show that diversity jurisdiction is proper.
I. Background
Plaintiffs, Elmer L. White and Deanna White, originally filed this action in the Court
of Common Pleas of Schuylkill County, Pennsylvania on or about June 28, 2012. (Doc. 1,
Ex. A.) In their Complaint, Plaintiffs assert claims for breach of contract, bad faith, and
violation of 73 Pa. Stat. Ann. §§ 201-1, et seq. (Id.)
On September 7, 2012, Defendant removed the action to this Court. (Doc. 1.) In the
Notice of Removal, Defendant avers that “Plaintiffs allege that they are residents of the
Commonwealth of Pennsylvania.” (Id. at ¶ 6.) Defendant Combined Insurance Company
is “a corporation, existing under the laws of and maintaining its principal place of business
in the state of Illinois.” (Id. at ¶ 9.)
II. Discussion
Federal courts have an obligation to address issues of subject matter jurisdiction sua
sponte. Meritcare Inc. v. St. Paul Mercury Ins. Co., 166 F.3d 214, 217 (3d Cir. 1999).
Defendant alleges that this Court’s basis for jurisdiction is diversity of citizenship pursuant
to 28 U.S.C. § 1332. Section 1332(a)(1) gives district courts original jurisdiction to hear
cases where the matter in controversy exceeds the value of seventy-five thousand dollars

($75,000) and is between citizens of different states. In order for jurisdiction to exist, there
must be complete diversity, meaning that each defendant must be a citizen of a different
state from each plaintiff. Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978).
Of course, “[t]he person asserting jurisdiction bears the burden of showing that the case is
properly before the court at all stages of the litigation.” Packard v. Provident Nat'l Bank, 994
F.2d 1039, 1045 (3d Cir. 1993).
“It is . . . well established that when jurisdiction depends upon diverse citizenship the
absence of sufficient averments or of facts in the record showing such required diversity of
citizenship is fatal and cannot be overlooked by the court, even if the parties fail to call
attention to the defect, or consent that it may be waived.” Thomas v. Bd. of Trs., 195 U.S.
207, 211 (1904). Moreover, “[w]hen the foundation of federal authority is, in a particular
instance, open to question, it is incumbent upon the courts to resolve such doubts, one way
or the other, before proceeding to a disposition of the merits.” Carlsberg Res. Corp. v.
Cambria Sav. & Loan Ass’n, 554 F.2d 1254, 1256 (3d Cir. 1977); see also Fed R. Civ. P.
12(h)(3).
For purposes of diversity jurisdiction, a natural person is deemed to be a citizen of
the state where she is domiciled. Swiger v. Allegheny Energy, Inc., 540 F.3d 179, 182
(3d Cir. 2008) (citing Gilbert v. David, 235 U.S. 561, 569, 35 S. Ct. 164, 59 L. Ed. 360
(1915)). To be domiciled in a state, a person must reside there and intend to remain
indefinitely. Krasnov v. Dinan, 465 F.2d 1298, 1300–01 (3d Cir. 1972). A person may
have only one domicile, and thus may be a citizen of only one state for diversity
jurisdiction purposes. See Williamson v. Osenton, 232 U.S. 619, 34 S. Ct. 442, 58 L. Ed.
758 (1914).
To the extent that the Notice of Removal alleges that Plaintiffs are “residents” of
Pennsylvania, this is not sufficient. Residence is not the same as domicile and does not
establish citizenship for diversity purposes. See Krasnov, 465 F.2d at 1300 (“Where one
lives is prima facie evidence of domicile, but mere residency in a state is insufficient for
purposes of diversity”) (internal citations omitted). The Court therefore finds that the
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Notice of Removal has not properly demonstrated Plaintiffs’ citizenship for the purposes
of diversity jurisdiction.
III. Conclusion
For the above stated reasons, the Notice of Removal fails to adequately establish
the diversity of the parties. As Defendant has not shown that complete diversity of
citizenship exists between the parties, the Court cannot determine that subject matter
jurisdiction exists and the matter is subject to dismissal pursuant to Federal Rule of Civil
Procedure 12(h)(3).

However, where “removal is based on allegations of diversity

jurisdiction and diversity jurisdiction appears to exist in light of other documents in the
record, courts in this district have allowed defendants to amend a notice of removal to
correct technical deficiencies in the notice’s allegations regarding citizenship of a party.” Zia
Zhao v. Skinner Engine Co., No. 11-7514, 2012 WL 1758145 (E.D. Pa. May 16, 2012). As
such, Defendant will be given twenty-one (21) days in which to file an amended notice of
removal to properly allege the citizenship of Plaintiffs. Failure to do so will result in this
action being remanded to the Court of Common Pleas of Schuylkill County, Pennsylvania.
An appropriate order follows.

September 13, 2012
Date

/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge

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