Pardue et al v. Hopkins et al

Filing 43

ORDER AND MEMORANDUM OPINION: Pending before the Court is Defendant Matthew Hopkins' ("Defendant") Motion to Dismiss for Lack of Subject Matter Jurisdiction (Doc. No. 10 ). Plaintiffs filed a response and surreply (Doc. Nos. [12 ], 22 ) and Defendant replied. (Doc. No. 28 ). The Court also requested the parties to conduct limited discovery and both parties provided supplemental briefs. (Doc. No. 40 , 42 ). For the reasons discussed below, Defendant's Motion to Dismiss is DENIED. Signed by District Judge William L. Campbell, Jr on 7/12/18. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(afs)

IN THE UNITED STATES DISTRICT COURT FOR
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
JUSTIN PARDUE and ERICA PARDUE
Plaintiffs,
v.
MATTHEW P. HOPKINS,
LARRY W. ANDERSON,
ANDERSON CONSTRUCTION,
LARRY ANDERSON CONSTRUCTION
CO.,
Defendants.

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NO. 3:17-cv-01560
JUDGE CAMPBELL

ORDER AND MEMORADUM OPINION
Pending before the Court is Defendant Matthew Hopkins’ (“Defendant”) Motion to
Dismiss for Lack of Subject Matter Jurisdiction (Doc. No. 10). Plaintiffs filed a response and surreply (Doc. Nos. 12, 22) and Defendant replied. (Doc. No. 28). The Court also requested the parties
to conduct limited discovery and both parties provided supplemental briefs. (Doc. No. 40, 42). For
the reasons discussed below, Defendant’s Motion to Dismiss is DENIED.
I.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs Justin and Erica Pardue (“Plaintiffs”) originally filed this action to recover
damages arising from injuries sustained on December 22, 2016, when Justin Pardue fell from the
roof of Defendant’s house located in Sumner County, Tennessee. (Doc. No. 1). Plaintiffs are
residents of Kentucky and Plaintiffs allege Defendant is a citizen and resident of Tennessee. (Id.).
Defendant owned the house and property located in Sumner County, Tennessee and employed
Justin Pardue to work on the construction of the house. (Id. at 2). According to the Complaint, on
December 22, 2016, Justin Pardue stepped out of the window of the house onto the roof and

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immediately slipped and fell off the roof sustaining serious injuries. (Id. at 3). Plaintiffs filed their
Complaint on December 14, 2017, alleging negligence and negligence per se against Defendant,
and requests damages in an amount more than $75,000. (Id. at 5-7). Plaintiffs allege this Court has
subject matter jurisdiction because the amount in controversy exceeds $75,000 and the citizenship
of the Plaintiffs is completely diverse from the citizenship of the Defendant as mandated by 28
U.S.C. § 1332 (a)(1). (Id at 2).
Defendant filed a Motion to Dismiss on February 7, 2018, asserting diversity of citizenship
does not exist because on the date Plaintiffs filed the Complaint Defendant was a resident and
citizen of Kentucky. (Doc. No. 10). Plaintiffs respond and requests the Court to deny Defendant’s
motion to dismiss. (Doc. No 12). In the alternative, Plaintiffs request the Court dismiss Defendant
alone pursuant to Federal Rules of Civil Procedure Rule 21 or 41 with leave to file an amended
complaint, or if the Court dismisses the entire action, to dismiss the Complaint without prejudice
and allow Plaintiffs to refile the action in federal or state court under the Tennessee savings statute.
(Doc. No. 12 at 26).
II.

APPLICABLE LAW

Federal Rule of Civil Procedure 12(b)(1) provides for the dismissal of a complaint when
the Court lacks subject matter jurisdiction. Where subject matter jurisdiction is challenged, “the
plaintiff has the burden of proving jurisdiction in order to survive the motion.” Hazel v. Beta
Omicron Chapter of Sigma Nu Fraternity House Corp. 2009 WL 677325 at *1 (E.D. Tenn. Mar.
12, 2009) (quoting Michigan S. R.R. Co. v. Branch & St. Joseph Counties Rail Users Assn., 287
F.3d 568, 573 (6th Cir. 2002)). Subject matter jurisdiction based on diversity must have
complete diversity of citizenship between all plaintiffs and all defendants. 28 U.S.C. § 1332(a)(2).
Complete diversity of citizenship exists when “no plaintiff and no defendant are citizens of the

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same state.” Jerome–Duncan, Inc. v. Auto–By–Tel, LLC., 176 F.3d 904, 907 (6th
Cir.1999) (citing U.S. Fid. & Guar. Co. v. Thomas Solvent Co., 955 F.2d 1085, 1089 (6th
Cir.1992). “Federal jurisdiction is tested according to the facts as they exist at the time an action
is initiated.” Woods v. Keith Titus Corp., 2013 WL3324062 at * 1 (E.D. Tenn. Jul. 1, 2013) (citing
Television Reception Corp. v. Dunbar, 426 F.2d 174, 177 (6th Cir.1970)).
Citizenship for purposes of the diversity statute, “means domicile rather than residence.”
Stifel v. Hopkins, 477 F.2d 1116, 1120 (6th Cir. 1973). “[D]omicile is established
by physical presence in a place in connection with a certain state of mind concerning one's intent
to remain there.” Woods, 2013 WL3324062 at * 1 (citing Miss. Band of Choctaw Indians v.
Holyfield, 490 U.S. 30, 48 (1989)). “To acquire a domicile within a particular state, a person must
be physically present in the state and must have either the intention to make his home there
indefinitely or the absence of an intention to make his home elsewhere.” Stifel, 477 F.2d at 1120.
Both of these factors must be met, “either without the other is insufficient.” Persinger v.
Extendicare Health Services, Inc., 539 F. Supp.2d 995, 996-97 (S.D. Ohio Feb. 12, 2008) (citing
Kaiser v. Loomis, 391 F.2d, 1007, 1009 (6th Cir. 1968)). “Mere absence from a fixed home,
however long or continued, cannot in and of itself effect a change in domicile.” Id.
“When a party's domicile is in doubt, courts must utilize a totality of the circumstances,
case-by-case approach, weighing a variety of relevant factors. Factors frequently taken into
account include:
the party's current residence; voter registration and voting practices; situs of
personal and real property; location of brokerage and bank
accounts; membership in unions, fraternal organizations, churches, clubs, and other
associations; place of employment or business; driver's license and
automobile registration; payment of taxes; as well as several other aspects of human
life and activity. No single one of these factors is dispositive, and the analysis does
not focus simply on the number of contacts with the purported domicile, but also
their substantive nature.”
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France v. CSX Transp., Inc., 2012 WL 2887160, * at 2-3 (E.D. Tenn. Jul. 13, 2012) (citing Ford
Motor Co. v. Collins, 2011 WL 5877216, at *2 (E.D. Mich. Nov.23, 2011) (internal quotation
marks and citations omitted); see also Ewert v. Holzer Clinic, Inc., 2010 WL 3063226, at *4 (S.D.
Ohio Aug. 3, 2010) (citing factors for court to consider when reviewing diversity jurisdiction
claims). A district court “has wide discretion” to consider affidavits and other evidence without
the motion being converted to one for summary judgment to determine if diversity exists between
the parties. See Ohio Nat’l Life Ins. v. United States of America, 922 F.2d 320, 325 (6th Cir. 1990).
III.

ANALYSIS

Defendant argues he had the intent to remain in Kentucky until he moved to Tennessee and
was not physically present in Tennessee. (Doc. No. 10, 40). Defendant argues he was a citizen and
resident of Kentucky on December 22, 2016, when the accident occurred and on December 14,
2017, when Plaintiffs filed their Complaint. (Doc. No 10-1). On January 2, 2018, the Plaintiffs
mailed their Complaint to Defendant’s property in Tennessee, but the summons was signed for by
Defendant’s father-in-law because Defendant still lived in Kentucky and was not physically
present. (Id.).
Defendant further argues he had the intent to remain in Kentucky until February 2018
because he: (1) was registered to vote and did vote in Allen County, Kentucky, (2) held real
property in Kentucky with homeowners insurance acquired in Kentucky, (3) had two bank
accounts in Kentucky, (4) has filed his taxes in Kentucky for the past five years, (5) paid
membership dues for the Professional Educators of Tennessee, but his membership information
lists his Kentucky address and the invoice was also mailed to his Kentucky home, (6) worked as a
teacher and his children attended school in Westmoreland, Tennessee, but at the end of the school
day he and his children returned to their home in Kentucky, (7) received Sumner School Records
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for his children at his home in Kentucky, (8) was listed as an “out-of-state-employee” on the
Sumner County school records, (9) had a contract with the Sumner Board of Education and the
contract lists his address in Kentucky, (10) holds a Kentucky driver’s license that does expire until
2018, and (11) had two motor vehicles registered in the Commonwealth of Kentucky and insured
under a Kentucky insurance company. See Doc. Nos. 41-1 – 41-21. Based on these factors,
Defendant argues his change in domicile did not occur until he was physical present and had the
intent to remain in Tennessee, which did not occur until at least February 3, 2018; the first night
Defendant stayed overnight at the property in Tennessee. (Doc. No. 40 at 4).
Plaintiffs argue Defendant’s responses and documents provides strong support that
Defendant had physical presence in Tennessee on the date the Complaint was filed and on the date
of the injury. (Doc. No. 42). Plaintiffs presents the following competing factors to show
Defendant’s domicile was in Tennessee: (1) his bank records show a vast majority of his time
(physical presence) was spent in Tennessee because a majority of his debit charges were in
Tennessee (Doc. No. 41-8), (2) he made weekly contributions to a church in Tennessee (Doc. 418), (3) his federal income tax return lists the Tennessee home as his “main home” beginning in
2016 (Doc. Nos. 41-15 – 41-18), (4) he donated property in Tennessee (41-15), (5) he and his wife
were both employed in Tennessee and both children attended school in Tennessee since August of
2016 (Doc. No. 41-18), (6) since August of 2016, he had homeowners insurance through
Tennessee Farmers Mutual Insurance Company (Doc. No. 19-12), (7) he was physically present
in Tennessee on the day of the accident giving rise to the lawsuit and on the day the complaint was
filed (Doc. No. 19 at ¶ 11-12).
Plaintiffs also argue Defendant already owned and paid taxes on the house in Sumner
County, Tennessee. (Doc. No. 12 at 4-5). Plaintiffs rely heavily on Tenn. Code Ann. § 13-7-211,

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which requires a person applying for a building permit to sign an affidavit stating they are
performing work on their own property in their own county of residence.1 (Doc. No. 12-1 at 21).
Plaintiffs argue Defendant signed an affidavit asserting he was performing work on his own
property in his own county of residence. 2 (Id. at 7). Plaintiffs argues the Court should look to the
Defendant’s intent to live in Tennessee, physical presence on the day of the accident, and presence
in Tennessee when Plaintiffs’ filed their lawsuit to establish diversity jurisdiction. (Doc. No. 12,
42).
In order for this Court to have diversity jurisdiction, Plaintiffs must establish that by
December 14, 2017, Defendant was physically present in Tennessee and had the intention to
remain there indefinitely. See S. Indus. Mech. Maint. Co., LLC v. Swafford, 2013 WL 5375422, at
*3 (W.D. Tenn. Sept. 24, 2013). Despite some definite ties to Kentucky, multiple factors show
Defendant had the intent to make Tennessee his home indefinitely. Bishop v. Hamya, 2017 WL
684243, *2 (M.D. Tenn. Jan. 12, 2017) (finding Plaintiff’s actions demonstrated California, not
Tennessee, was his domicile after only remaining in Tennessee for as long as medically necessary
then returning back to California to continue his rehabilitation). Defendant lists his main home as
Tennessee on tax documents starting in 2016, signed an affidavit stating he was supervising work
on property in his county of residence, made weekly contributions to a church in Tennessee,
worked in Tennessee, enrolled his children in Tennessee schools, and in February 2017, Defendant
moved into the home in Tennessee. Furthermore, on the date of the injury Defendant was

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Tenn. Code Ann. § 13-7-211 requires a person seeking a building permit to have workers
compensation insurance unless an exemption applies.
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“This section does not apply to those persons who are not required by title 50, chapter 6, to obtain
workers' compensation coverage, to any person who performs work on such person's own property
in such person's own county of residence, or to any person who directly supervises work on such
person's own property in such person's own county of residence.” Tenn. Code Ann. § 13-7211(c)(1).
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physically present at the home in Tennessee and when the Complaint was filed Defendant was in
Tennessee teaching his history class. The Court finds Defendant formed the requisite intent to
make Tennessee his permanent home at the time he accepted a job, enrolled his children, found a
church to attend, and listed Tennessee as his “main home” on his tax forms. See Bateman v. DuPont
De Nemours & Co., 7 F.Supp.2d 910, 912 (E.D.Mich.1998) (stating, “[a] domicile is distinguished
from a residence by the permanency and scope of a party's presence at either location. It is the
place where a person dwells and which is the center of his domestic, social, and civil life”).
Defendant was present in Tennessee in all aspects of his life, which can be shown through his
employment, tax and permit forms, and debit charges. The Court also finds persuasive that
Defendant moved to Tennessee two months after Plaintiffs filed the Complaint.
A balancing of the relevant factors leads the Court to find that Defendant has failed to meet
his burden of establishing that he was a Kentucky citizen at the time the action was commenced
on December 14, 2017. Defendant was physically present in Tennessee, and had the requisite intent
to remain in Tennessee indefinitely. Thus, because complete diversity exists between the parties,
the Court has subject matter jurisdiction over the action against Defendant, and Defendant’s
Motion to Dismiss is DENIED.3
It is so ORDERED.
____________________________________
WILLIAM L. CAMPBELL, JR.
UNITED STATES DISTRICT JUDGE

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Because the Court denies the motion to dismiss, the Court will not address Plaintiff’s other
arguments relating to the Tennessee Savings Statutes.
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