Opinion
Case No. 00-1289-KMH.
February 28, 2001.
MEMORANDUM AND ORDER
This matter is before the court on defendant Snodgrass' motion to dismiss for lack of subject matter jurisdiction (Doc. 32). Snodgrass challenges plaintiff's assertion that diversity of citizenship between plaintiff and defendants existed on the date this lawsuit was filed. For the reasons stated below, the motion shall be denied.
Defendant Rosenberg also filed a motion to dismiss for lack of subject matter jurisdiction (Doc. 36). However, plaintiff and Rosenberg negotiated a settlement agreement which supercedes Rosenberg's motion to dismiss. By agreement of the parties, Snodgrass' motion incorporates the arguments and attachments presented in Rosenberg's motion. See Status Report and Order, filed February 12, Doc. 40.
Background
Plaintiff filed this wrongful death action on July 10, 2000. She alleges, among other things, that her husband's death was caused by the medical negligence of Dr. Snodgrass and Kimbra Rosenberg, R.N. Plaintiff invoked diversity jurisdiction under 28 U.S.C. § 1332, claiming that she is a citizen of Oklahoma and defendants are citizens of Kansas. Snodgrass moves to dismiss for lack of subject matter jurisdiction, arguing that, at the time of filing, plaintiff was a citizen of Kansas, not Oklahoma, and thus no diversity exists. Plaintiff counters that she moved from Rozel, Kansas to Miami, Oklahoma on or about June 1, 2000 and was a domiciliary and resident of Oklahoma on July 10, 2000.
Legal Standards
As noted, plaintiff seeks to invoke subject matter jurisdiction based on diversity under 28 U.S.C. § 1332. In evaluating jurisdiction, the court looks to the time the complaint was filed to determine whether diversity exists.Free-McMoRan, Inc. v. K N Energy, Inc., 498 U.S. 428, 111 S.Ct. 858, 112 L.Ed.2d 951 (1991). The rules governing the exercise of diversity jurisdiction were summarized by Judge Saffels in Cressler v. Neuenschwander, 930 F. Supp. 1458 (Kan. 1996):
28 U.S.C. § 1332(a) provides that "[t]he district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of [$75,000] . . . and is between (1) citizens of different States. . . ." For purposes of diversity jurisdiction, a person is considered a citizen of the state in which he is domiciled. Crowley v. Glaze, 710 F.2d 676, 678 (10th Cir. 1983). Domicile is established by physical presence in a place accompanied by an intent to remain there. Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48, 109 S.Ct. 1597, 1608, 104 L.Ed.2d 29 (1989). 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) (citing 1 James W. Moore, Moore's Federal Practice 0.74[3.-4] (2d ed. 1996)), and no minimum period of residence is required. Mooris v. Gilmer, 129 U.S. 315, 328, 9 S.Ct. 289, 293, 32 L.Ed. 690 (1889).
Because the federal courts are courts of limited jurisdiction, however, there is a presumption against the existence of diversity jurisdiction. Gasso v. Utah Power Light Co., 495 F.2d 906, 909 (10th Cir. 1974). Once allegations of diversity have been challenged, the party invoking federal jurisdiction must prove citizenship by a preponderance of the evidence. Mid-Continent Pipe Line Co. V. Whitely, 116 F.2d 871, 873 (10th Cir. 1940). Courts have also recognized a presumption of an established domicile over a newly acquired one. Bair v. Peck, 738 F. Supp. 1354, 1356 (Kan. 1990). On the other hand, the place where a person lives is assumed to be his domicile unless the evidence establishes the contrary. District of Columbia v. Murphy, 314 U.S. 441, 455. 62 S.Ct. 303, 309-10, 86 L.Ed. 329 (1941): see also State Farm Mut. Auto. Ins. Co. V. Dyer, 19 F.3d 514, 520 (10th Cir. 1994) (a person's residence is his prima facie domicile).
Id. at 1460.
It is undisputed that plaintiff was physically living in Oklahoma when the complaint was filed. Rather, the parties focus arguments on whether plaintiff had the requisite intent to remain there. In determining plaintiff's intent, courts use a "totality of the evidence" approach and, in addition to plaintiff's expression of intent, consider the following objective factors:
1. Whether an individual votes where she claims domicile;
2. The manner in which an individual lives, taken in connection with her station in life, i.e., whether she rents or buys a home;
3. Whether family and dependents move to the new residence;
4. Whether an individual's belongings have been moved to the new residence;
5. One's relationships with church and clubs in the new residence;
6. Whether a place of abode is retained in the old state of residence;
7. Whether investments in local property or enterprise attach to the former residence;
8. Whether one retains affiliations with professional, religious, and fraternal life of the former community;
9. What domicile is claimed for tax purposes;
10. Where one is employed;
11. Where auto registration and driver's license are maintained; and
12. Where bank accounts are maintained.
Cressler at 1460; Marcotte v. State Farm Fire Casualty, 4 F. Supp.2d 1280 (Kan. 1998). Here, the parties have applied the above factors to the particular facts and have reached conflicting conclusions. As discussed in greater detail below, the court finds that analysis of the relevant factors supports the conclusion that plaintiff was domiciled in Oklahoma on July 10, 2000.
A. Voting
The first factor, considered by many courts to be of special importance, provides no evidence of plaintiff's intent to be domiciled in Oklahoma or Kansas because no elections occurred between plaintiff's move to Oklahoma (June 1) and the filing of this lawsuit (July 10). This factor is neutral.
B. Own or rent new residence
This factor weighs heavily in plaintiff's favor. In May 2000, plaintiff's elderly aunt, a resident of Miami, Oklahoma, was confined to a hospital because she was unable to care for her daily needs. Plaintiff agreed to provide home care for her aunt in exchange for a place to stay and, on June 1, 2000, plaintiff traveled to Miami with clothing, bedding, and kitchen utensils. Plaintiff advised both friends and family that she found her Rozel home depressing after the death of her husband and that "if things worked out" she intended to stay in Oklahoma. Shortly after arriving, plaintiff decided to stay in Oklahoma.
Plaintiff's elderly aunt moved into a nursing home around July 1. Plaintiff continued to live in her aunt's former home for three months until plumbing and other maintenance repairs were needed. Because she could not afford the repair and expenses, plaintiff moved out and rented a furnished apartment in Miami, Oklahoma.
Plaintiff's decision to live with her aunt and to later rent an apartment is consistent with her station in life. Plaintiff is unemployed and suffers from diabetes and depression. Her marginal resources are barely sufficient for daily needs and wholly inadequate to purchase a home. Securing living quarters in exchange for home care or rent is consistent with her modest lifestyle.
C. Dependent relocation
Plaintiff's three oldest children are in their thirties and live independent of plaintiff. Marajah Spreier, plaintiff's fourth child, is twenty years old and maintains a close relationship with her mother. However, prior to plaintiff's move to Oklahoma, Marajah moved to Lawrence, Kansas. The fact that both plaintiff and her daughter moved from Rozel, Kansas weighs in plaintiff's favor.
D. Location of personal belongings
Many items of personal property remain at the house in Rozel. However, plaintiff's explanation that she lacks the physical ability or financial resources to move the remaining items from Kansas to Oklahoma is credible. Furthermore, many of the items appear to be of limited value. This factor weighs marginally, if at all, against plaintiff.
For example, defendant states that plaintiff left her husband's disabled "antique" station wagon in Rozel. Plaintiff's picture of the car (exhibit J) reveals a rusting four door station wagon, circa 1970's, which hasn't been moved in years. Plaintiff's decision to leave the car is understandable. Interior pictures of the house (exhibits H and I) reveal large numbers of boxes and bags of miscellaneous items in disarray. Plaintiff's argument that she suffers from depression and has had difficulty dealing with the loss of her husband is borne out by the pictures of her house in Rozel.
E. Churches and social clubs at the old and new residence
Plaintiff maintains no religious or social club ties with her old residence in Rozel. She attends church in Oklahoma only on an irregular basis because of embarrassment associated with diabetes and her frequent need to go to the bathroom. Unfortunately, plaintiff's lack of social activity reveals more about her depression than it does about her intent to be domiciled in Kansas or Oklahoma. This factor is neutral.
F. Maintenance of abode in the old state
This factor weighs heavily in plaintiff's favor. The house in Rozel is currently not habitable. Water service has been terminated because of leaks and the house is used for storage rather than human occupancy.
G. Investments in property or enterprise at the old residence
Except for the value of the house itself, plaintiff has no investment property or enterprise in Rozel. Plaintiff has contacted a realtor about selling the house but significant repairs and cleaning are necessary to make the house marketable. This factor weighs in plaintiff's favor.
H. Domicile claimed for tax purposes
This factor provides no evidence of plaintiff's intent because no tax returns have been filed since plaintiff's move to Oklahoma.
I. Employment
Plaintiff suffers from diabetes and depression. She was unemployed before moving to Oklahoma and remains unemployed. This factor is neutral.
J. Auto registration and driver's license
This factor weighs marginally against plaintiff because she waited until October 30, 2000 to change her car registration and driver's license to Oklahoma. Plaintiff deferred until her Kansas car tag expired and, once again, her delay in attending to these details is consistent with her depression.
K. Location of bank accounts
This factor weighs in plaintiff's favor. On June 27, 2000, plaintiff opened a savings account with a bank in Oklahoma. The timing of this activity is consistent with plaintiff's testimony that she decided to stay in Oklahoma in June, 2000. The opening of the Oklahoma bank account is evidence that plaintiff intended to stay for an indefinite period of time.
Snodgrass notes that plaintiff also maintained several bank accounts in Kansas in July 2000. Two of these accounts were joint accounts and maintained for the practical purposes of settling her mother's estate and assisting her daughter financially. The third account was a saving account of roughly $1,000. The court is not persuaded that the Kansas accounts are strong evidence of an intent to return to Rozel. Plaintiff is not a sophisticated money manager and neither she nor her deceased husband maintained a checking account during the past five years. When necessary, payments were made by use of a money order.
L. Miscellaneous items
In addition to the above factors, defendant complains that plaintiff waited several months to disconnect phone service at her Rozel house and continues the gas and electrical services there. The maintenance of gas and electrical service to an unoccupied house is not an unreasonable choice considering the harsh Kansas winters. Defendant's argument that continuing utility service shows an intent to remain in Kansas is unpersuasive.
Conclusion
The court finds from the "totality of the evidence" that plaintiff had the requisite intent to remain in Oklahoma for an indefinite period of time when this case was filed on July 10, 2000. Plaintiff has proven her citizenship in Oklahoma by a preponderance of the evidence because a majority of the relevant factors weighs in plaintiff's favor. Because plaintiff is a citizen of Oklahoma and defendants are citizens of Kansas, diversity jurisdiction exists under 28 U.S.C. § 1332; thus, the motion to dismiss shall be denied.
IT IS THEREFORE ORDERED that Snodgrass' motion to dismiss (Doc. 32) is DENIED. Rosenberg's motion to dismiss (Doc. 36) is also DENIED.