Summary
explaining that "[d]iversity of citizenship is determined at the time the complaint is filed"
Summary of this case from Mosqueda v. BBR Invs., LLCOpinion
CIVIL ACTION No. 01-2004-KHV
July 23, 2001
MEMORANDUM AND ORDER
Daren Lloyd brings a legal malpractice suit against Kurtis I. Loy, Robert S. Tomassi and Loy and Tomassi, P.A. This matter comes before the Court on defendants' Motion To Dismiss (Doc. #16) filed May 10, 2001, alleging lack of subject matter jurisdiction. For reasons stated below, defendants' motion is sustained.
Standard For 12(b)(1) Motion To Dismiss
The Court may only exercise jurisdiction when specifically authorized to do so, see Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994), and must "dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking." Scheideman v. Shawnee County Bd. of County Comtn'rs, 895 F. Supp. 279, 281 (D. Kan. 1995) (quoting Basso v. Utah Power Light Co., 495 F.2d 906, 909 (10th Cir. 1974)); see Fed.R.Civ.P. 12(h)(3). The party who seeks to invoke federal jurisdiction bears the burden of establishing that such jurisdiction is proper. See Basso, 495 F.2d at 909. When federal jurisdiction is challenged, plaintiff bears the burden of showing why the case should not be dismissed. See Jensen v. Johnson County Youth Baseball League, 838 F. Supp. 1437, 1439-40 (D. Kan. 1993).
Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction generally take the form of either facial attacks on the complaint or factual attacks on the accuracy of those allegations.See Holt v. United States, 46 R3d 1000, 1002-03 (10th Cir. 1995) (citing Ohio Nafl Life Ins. Co. v. United States. 922 F.2d 320, 325 (6th Cir. 1990)). Defendants' motion falls within the latter category because it introduces evidence outside the complaint. In such event, the Tenth Circuit has set forth the following standard:
[A] party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends. When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint's factual allegations. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). In such instances, a court's reference to evidence outside the pleadings does not convert the motion to a Rule 56 motion.Holt, 46 F.3d at 1003 (citations omitted).
Factual Background
The following facts are either undisputed or, where disputed, construed in the light most favorable to plaintiff.
From May of 1995 to roughly November of 1995, plaintiff resided in Fort Scott, Kansas. He first worked for a Sonic restaurant franchise in Fort Scott. By September 4, 1995, however, he had started work for a Sonic franchise in Missouri. On December 12, 1995, plaintiff and his family moved 16 miles, from Fort Scott to Nevada, Missouri. The purpose of the move was to create diversity jurisdiction in the underlying lawsuit.
Plaintiff moved to Missouri at the suggestion of defendants, who represented plaintiff in the federal lawsuit which precipitated the legal malpractice claims in this suit.
In late 1996, plaintiff moved back to Fort Scott, where he resided for four years until December of 2000, when he and his wife separated. At the time, plaintiff was pursuing negotiations to open a restaurant in Nevada. He owned residential rental property in Fort Scott, but it was occupied and he moved back to Nevada. Plaintiff obtained an apartment with a month-to-month lease. Plaintiffs wife and children remained in a rented home in Fort Scott. Plaintiff's wife went to Nevada with plaintiff on a few occasions to view commercial real estate properties for the restaurant. Plaintiff registered to vote in Missouri and obtained Missouri vehicle tags for his car. Plaintiff did not own any property aside from his rental property.
Plaintiff states that "I moved over there [Nevada] but I stayed over there very little." Exhibit D in Plaintiff's Response In Opposition To Defendants' Motion To Dismiss (Doc. #20) filed May 31, 2001 at 12:3-4.
In his response to defendants' motion to dismiss, plaintiff alleges that he also got a Missouri driver's license. Defendants contend that this assertion is unsupported by the record. On June 18, 2001, plaintiff filed a supplemental reply with documentation regarding his Missouri driver's license and a copy of his Nevada apartment lease.See Supplemental Reply To Defendants' Response (Doc. #23). Under D. Kan. Rule 7.1, supplemental replies and sur-replies are not ordinarily allowed. Defendants have not made a motion to strike plaintiffs sur-reply, but even if the Court considered it, the outcome on this issue would remain the same.
From January 1, 2001 to April 1, 2001, plaintiff spent fewer than ten nights in his apartment in Nevada. The other nights he stayed in the family home in Fort Scott so that he could conduct negotiations regarding the restaurant in Nevada. Plaintiff did a few odd jobs in both Missouri and Kansas during this time. The restaurant negotiations fell through on April 1, 2001 and plaintiff moved back to Fort Scott, where he currently resides with his wife. Plaintiffs rental property in Kansas is now vacant. He intends to reside there if he and his wife again separate.
On January 3, 2001, plaintiff filed his complaint in this case. At the time, he alleged that the Court had diversity jurisdiction because his domicile was in Nevada and defendants are domiciled in Kansas.
Analysis
Plaintiff alleges that this Court has diversity jurisdiction. See 28U.S.C. § 1332. Diversity of citizenship is determined at the time the complaint is filed, and it is based on the domicile of the parties.See Stuck w. Bates. 2 F. Supp.2d 1434, 1437 (D. Kan. 1998) (citing Freeport-McMoRan. Inc., v. K N Energy. Inc., 498 U.S. 426, 428 (1991), and Crowle v. Glaze, 710 F.2d 676, 678 (10th Cir. 1983)). To establish domicile, a party must have physical presence in a location and an intent to remain there indefinitely. See Stucky. 2 F. Supp.2d at 1437 (citing Miss. Band of Choctaw Indians v. Holyfield. 490 U.S. 30, 48 (1989)). The place where a person lives is assumed to be his domicile unless the evidence establishes the contrary. See District of Columbia v. Murphy. 314 U.S. 441.455 (1941): see also State FarmMut. Auto. Ins, Co. v. Dyer. 19 F.3d 514. 520 (10th Cir. 1994) (a person's residence is his prima facie domicile). The law, however, "favor[s] an established domicile over a newly acquired one." Stucky. 2 F. Supp.2d at 1437 (citingBair v. Peck. 738 F. Supp. 1354, 1356 (D. Kan. 1990)); see also Janis v. Story Assoc., 124 F.3d 216, 1997 WL 545569, at *3 (10th Cir. Sept. 4, 1997); Abercrombie v. Sigler. No. 87-2358-S, 1988 WL 212479, at *2 (D. Kan. Aug. 25, 1988).
Defendants, who are domiciled in Kansas, contend that plaintiff was domiciled in Kansas when he filed his complaint. Because complete diversity is required, diversity jurisdiction is not present if defendants and plaintiff were domiciled in the same state. See Asselin v. Shawnee Mission Med. Ctr., 894 F. Supp. 1479, 1484 (D. Kan. 1995) (citing Knoll v. Knoll, 350 F.2d 407.407 (10th Cir. 1965)). Plaintiff however, contends that he moved from Kansas to Missouri before he filed his complaint. A change of domicile is valid even if done for the purpose of creating diversity, Bank One. Texas, N.A. v. Montle, 964 F.2d 48, 53 (1st Cir. 1992), and no minimum period of residence is required. See Morris v. Gilmer, 129 U.S. 315, 328(1889). Plaintiff need not intend to remain permanently in his new domicile. See Crowley, 710 F.2d at 678. It is enough to have a "`floating intention" to stay indefinitely and also have the general desire to return to the former domicile at some undetermined point of time. Id. It is not sufficient, however, to have the existing intention to return upon the happening of a reasonably foreseeable event. See Gates v. Comm'r of Internal Revenue. 199 F.2d 291, 294 (10th Cir. 1952).
As an initial matter, the facts do not clearly show that plaintiff fulfills the physical presence requirement of the domicile test. While the record states that plaintiff moved to Nevada on an unspecified date in December of 2000, the record is unclear whether plaintiff moved his personal possessions to Missouri. He clearly did not move his family. From January 1 through April 1, 2001, he spent only ten nights there. Under the circumstances, the Court has strong doubt that plaintiff even established physical presence in Missouri. See Hendry v. Masonite Corp., 455 F.2d 955, 956 (5th Cir. 1972) (intent to move might have been formed but physical presence prong not met when plaintiff worked in new state but possessions and family remained in other state and he voted in other state).
Assuming that plaintiff can establish physical presence, however, he has not shown that he intended to move his domicile from Kansas to Missouri. Where it appears that a party may have more than one residence, the Court uses a "totality of evidence" approach to ascertain the intended domicile. See Cressler v. Neuenschwander, 930 F. Supp. 1458, 1460 (D.Kan. 1996) (citing Hicks v. Brophv, 839 F. Supp. 948, 950-51 (D. Conn. 1993)). Factors which the Court considers in determining a party's intent include the following:
1. Whether or not an individual votes where he claims domicile;
2. The manner in which an individual lives, taken in connection with his station in life, i.e., whether he rents or buys a home;
3. Whether his family and dependents have moved to the new residence;
4. Whether an individual's belongings have been moved to the new residence;
5. One's relationships with churches, clubs, and investments in the new residence;
6. Whether or not a place of abode is retained in the old state of residence;
7. Whether or not investments in local property or enterprise attach one to the former residence;
8. Whether one retains affiliations with professional, religious and fraternal life of the former community; and
9. What domicile is claimed for tax purposes,
Cressler, 930 F. Supp. at 1460. Statements of intent are accorded minimal weight relative to these objective factors. See Freeman v. Northwest Acceptance Corp., 754 F.2d 553, 556 (5th Cir. 1985).
While plaintiff does not allege that he voted in Missouri, he did change his voter registration to Missouri. Plaintiff did not buy a home in Missouri. His apartment, like the family home in Kansas, was rented. Plaintiff had a month-to-month apartment lease. During the three months that he had the Nevada apartment, plaintiff spent more than 80 nights in Fort Scott with his family.
Aside from the fact that plaintiff s wife viewed potential restaurant sites in Nevada, the record contains no evidence that his family spent any time in Missouri. Plaintiff does not assert that he moved his belongings to his new apartment, or that he joined any churches or clubs or formed any professional, religious or fraternal affiliations in Missouri. Plaintiff did pursue a restaurant franchise investment in Missouri, but the negotiations apparently took place in Kansas and he provides no evidence regarding the status of his restaurant negotiations at the time he moved. Plaintiff obtained Missouri vehicle tags. He owned rental property in Kansas. He also apparently did odd jobs in both Missouri and Kansas. Plaintiff provides no information regarding which domicile he claimed for tax purposes.
While the factors regarding intent do not point conclusively in one direction, plaintiff has not persuasively shown that he intended to change his domicile from Kansas to Missouri. A reasonable inference from the record is that plaintiff took an apartment lease in Missouri because he expected to open a restaurant in Nevada and, given his domestic situation, he needed to find alternative housing. Plaintiff s need for separate housing was apparently a contingent one, however, as he stayed at the apartment only sporadically for three months and then returned home. On these facts, plaintiffs change of voter registration and acquisition of Missouri vehicle tags are not sufficient to overcome the presumption of an established residence over a new one. In short, plaintiff has not established by a preponderance of the evidence facts which support the exercise of diversity jurisdiction. See Marcotte v. State Farm Fire Cas. Co., 4 F. Supp.2d 1280 (D. Kan. 1998) (failure to vote, pay utility or tax bills, form professional, social or religious connections, buy property or move personal items meant plaintiff had not established new residence); Callicrate v. Farmland Indus., Inc., No. 93-1455-PEK, 1995 WL 463664, at *5 (D. Kan. July 31, 1995) (self-serving statements, driver's license, voter registration and sporadic trips to state are not enough to overcome presumption of established residence when majority of time was spent in other state with family).
IT IS THEREFORE ORDERED that defendants' Motion To Dismiss (Doc. #16) filed May 10, 2001 be and hereby is SUSTAINED.