MOSE H. TALLCHIEF, Plaintiff,
TRAVIS JOHN HADEN, Defendant.
ORDER DISMISSING CASE FOR LACK OF JURISDICTION
KENNETH G. GALE, Magistrate Judge.
This case comes before the Court on Defendant's Motion to Dismiss (Doc. 51), which has been fully briefed and is ripe for decision. (Docs. 52, 55, 56). Defendant's motion is GRANTED because the Court find it lacks subject matter jurisdiction.
I. Facts and Procedural History
Plaintiff has brought the present negligence action alleging injuries sustained in an automobile accident that occurred on June 23, 2010, in Cowley County, Kansas. (Doc. 1.) Defendant moves to dismiss Plaintiff's Complaint, arguing it is deficient on its face because Plaintiff has failed to allege domicile or citizenship in Oklahoma, which is necessary to establish the Court's diversity jurisdiction. Defendant also claims that the Plaintiff was factually a resident of Kansas at the time this action was filed, thus depriving the Court of subject-matter jurisdiction. ( See generally Docs. 51, 52.) The Plaintiff concedes that he was a Kansas domiciliary at the time of the accident, but contends that his domicile changed to Oklahoma prior to filing the Complaint. ( See generally Doc. 55).
Plaintiff owns a residence in Wichita, Kansas, with his son. (Doc. 52, at 3.) The house was purchased by Plaintiff's deceased wife before they were married in 1977. (Doc. 55, at 3.)
Plaintiff lists a current address in Fairfax, Oklahoma. (Doc. 52, at 3.) He inherited this property from his father in 1948. (Doc. 55, at 2.) The tax statements for this property, however, are sent to Plaintiff at a Wichita, Kansas, P.O. Box address. (Doc. 52, at 3.) When Plaintiff filed bankruptcy in October 2010 - which he filed in Wichita, Kansas - he listed his Kansas, not his Oklahoma, property as his homestead. (Doc. 52, at 5.) His bankruptcy documents also list various Kansas bank accounts, but none in Oklahoma. (Doc. 52, at 6.)
Plaintiff contends that he lived in the Wichita home until his wife was placed in a nursing home in 2005. (Doc. 55, at 4.) At that point, he began spending half of his time in Oklahoma and the other half in Wichita. (Doc. 55, at 4.) Plaintiff contends that he "always planned to move back to the family's land in Oklahoma and did so after the accident, before the suit was filed." (Doc. 55, at 2.) He estimates that since he got out of the hospital after the accident at issue, he has spent 60% of this time in Oklahoma and 40% in Wichita. (Doc. 52, at 4.) Two trailers and a barn are located on the Oklahoma property; Plaintiff contends that he lives in the larger trailer, which has a bedroom, kitchen, bathroom, office, and laundry facilities. (Doc. 55, at 2, 3.) The larger trailer was moved to the property in 2012 before the lawsuit was filed and contains various of Plaintiff's personal belongs. (Doc. 55, at 3.) Plaintiff's three horses are also kept on the property along with his dog. (Doc. 55, at 3.)
All of Plaintiff's health care providers (including dental, vision, and audiology) are in Wichita, Kansas. (Doc. 52, at 7.) This is true for both before and after the accident at issue. (Doc. 52, at 7.) He continues to use only pharmacies in Wichita, Kansas. (Doc. 52, at 8.) As of March 28, 2012 - less than two weeks after the Complaint at issue was filed - Plaintiff listed his address as 3557 S. Osage in Wichita, Kansas, along with a Kansas telephone number in a form he filled out for Grene Vision Group, a Wichita eye doctor. (Doc. 52, at 9.) He did the same with a form filled out for a cardiology appointment in Wichita in May 2012. Plaintiff's Medicare claims are processed by an insurance company that services Iowa, Kansas, Missouri, and Nebraska - not Oklahoma. (Doc. 52, at 10.)
Plaintiff is registered to vote in Kansas and has been since at least April 1996. ( Id., at 9.) He does, however, attend Osage Nation Agency and Osage Mineral Council meetings in Oklahoma, and votes in tribal elections. (Doc. 55, at 3.) Plaintiff was driving a vehicle with an "Osage Nation" Oklahoma license plate at the time of the accident. (Doc. 55, at 3.)
II. Motion to Dismiss Standards: FRCP 12(b)(1).
Federal courts are courts of limited jurisdiction, available to exercise their power only when specifically authorized to do so. Lindstrom v. United States, 510 F.3d 1191, 1193 (10th Cir. 2007). Pursuant to the Federal Rules of Civil Procedure, a party may move for dismissal based upon a court's "lack of jurisdiction over the subject matter." Fed.R.Civ.P. 12(b)(1). Plaintiff has the burden to show that the Court has subject matter jurisdiction over his claims. U.S. ex rel Stone v. Rockwell Intern. Corp., 282 F.3d 787, 798 (10th Cir. 2002).
The Tenth Circuit has noted that Rule 12(b)(1) motions may take on two forms, either a "facial" attack or a "factual" attack. Paper, Allied-Indust., Chemical & Energy Workers Int'l Union v. Continental Carbon Co., 428 F.3d 1285, 1292 (10th Cir. 2005).
First, a facial attack on the complaint's allegations as to subject matter jurisdiction questions the sufficiency of the complaint. Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990). In reviewing a facial attack on the complaint, a district court must accept the allegations in the complaint as true. Id.
Second, a party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends. Id. When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint's factual allegations. Id. 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). Id. ; Wheeler v. Hurdman, 825 F.2d 257, 259 n.5 (10th Cir.), cert. denied, 484 U.S. 986 , 108 S.Ct. 503, 98 L.Ed.2d 501 (1987). In ...