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Creeden v. Torres

United States District Court, Tenth Circuit

November 21, 2013

JACK CREEDEN, Plaintiff,
v.
JOEL TORRES, Defendant.

MEMORANDUM AND ORDER

James P. O’Hara U.S. Magistrate Judge

This personal injury case is before the court on defendant Jack Creeden’s motion to dismiss for lack of subject matter jurisdiction, under Fed.R.Civ.P. 12(b)(1) (doc. 17). The plaintiff, Jack Creeden, alleges in the complaint (doc. 1) that he is a resident and citizen of the state of Colorado. But the defendant, Joel Torres, who is a resident and citizen of Kansas, asserts that plaintiff is a citizen of Kansas, not Colorado, such that diversity jurisdiction does not exist under 28 U.S.C. § 1332(a). After reviewing the parties’ submissions, the court has determined that diversity is lacking, and that the case must therefore be dismissed.

I. Background

Plaintiff was injured in an automobile accident on May 8, 2011 in Satanta, Kansas.[1] Following the accident, plaintiff timely filed suit against defendant in the District Court of Reno County, Kansas.[2] However, the suit was transferred to the District Court of Haskell County, Kansas pursuant to K.S.A. § 60-609.[3] Plaintiff dismissed the state court case on April 30, 2013 without prejudice.[4] One week later, plaintiff filed suit in this court on the basis of diversity jurisdiction.[5]

On July 5, 2013, defendant served discovery requests on plaintiff requesting evidence of diversity of citizenship at the time of filing suit.[6] Defendant also deposed plaintiff on September 13, 2013.[7] Plaintiff asserts he changed his domicile to Colorado in late April 2013 before filing suit in federal court on May 7, 2013. Plaintiff relies upon his deposition transcript and deposition exhibits, which include affidavits of plaintiff and his sister. Defendant asserts plaintiff is still a citizen and resident of the state of Kansas and argues there is no evidence, other than plaintiff’s subjective allegations, that plaintiff was a resident of Colorado when this suit was filed.

II. Discussion

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, exclusive of interest and costs, 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.[8] Domicile is established by physical presence in a place accompanied by an intent to remain there.[9] Residence in a given state does not establish citizenship for diversity purposes, and the court must look to plaintiff’s “entire course of conduct” to determine citizenship.[10] The requisite intention is to remain at that place for an unlimited or indefinite period of time.[11] “Residence and intent are inextricable elements of domicile. If unaccompanied by the necessary intent, residence alone is not determinative of citizenship.”[12]

Because the federal courts are courts of limited jurisdiction, however, there is a presumption against the existence of diversity jurisdiction.[13] Once allegations of diversity have been challenged, the party invoking federal jurisdiction must prove citizenship by a preponderance of the evidence.[14] In determining diversity jurisdiction, domicile is assessed as of the date the complaint is filed.[15] Courts have also recognized a presumption of an established domicile over a newly acquired one.[16]

Under the circumstances of a recent change in residence, courts often look to objective indicia of intent, such as the place of employment, driver’s license, automobile registration, bank accounts, tax payments, location of personal property, and voting practices.[17] Statements of intent are accorded minimal weight relative to these objective factors.[18]

A. Voting

Voter registration, a factor considered by many courts to be of special importance, does not weigh in plaintiff’s favor.[19] During his deposition, plaintiff was asked to provide any evidence that he registered to vote in Colorado.[20] Plaintiff claimed he is registered to vote in Colorado but could not provide an exact date of registration and promised to provide evidence of such.[21] Defendant asserts that to date plaintiff has not provided any information or evidence to show plaintiff was registered to vote in Colorado when he filed suit. In response, plaintiff provided two sworn affidavits from plaintiff and plaintiff’s sister, which state that “since late April 2013, ” plaintiff registered as a Colorado voter.[22] “Since late April 2013” is ambiguous at best. From this evidence, the court cannot determine if plaintiff was registered to vote in Colorado as of May 7, 2013. Plaintiff provides no documentary or other evidence to support his assertion that he was registered to vote in Colorado on or before May 7, 2013. Plaintiff has failed to meet his burden. Therefore, this factor does not weigh in plaintiff’s favor.

B. Driver’s license and automobile registration

Plaintiff testified that he took the Colorado driving test on “May the 6th or 7th or somewhere around in there.”[23] Plaintiff also testified, though, that the only legible documents showing his driver’s license history in Colorado are dated June 13, 2013 and July 26, 2013.[24] Notably, plaintiff submitted evidence of vehicle insurance, inspection, and registration in Colorado dated June 13, 2013 and June 24, 2013, both dates being subsequent to May 7, 2013.[25] Plaintiff also submitted his sworn answer to one of defendant’s interrogatory requests, stating that his Colorado driver’s license was issued on May 10, 2013 but was lost and reissued on July 26, 2013.[26]

In addition, plaintiff testified that he has registered one vehicle in Colorado but he cannot remember what date or month he registered this vehicle.[27] Moreover, plaintiff admitted in his deposition that he has seven or eight other vehicles in Kansas at his prior residence.[28] Although plaintiff’s affidavit states that “since late April 2013, ” plaintiff has registered a vehicle in Colorado and obtained a Colorado’s driver’s license, this evidence is afforded little weight because “since late April 2013” does not necessarily mean on or before May 7, 2013. In fact, the prior sworn testimony of plaintiff suggests plaintiff applied for his ...


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