United States District Court, D. Kansas
NINOSLAVA TOMASIC, individually as the surviving spouse of Ivica Tomasic, and heir-at-al of Ivica Tomasic, deceased, et al., Plaintiffs,
JOHN TOBIN, et al., Defendants.
MEMORANDUM AND ORDER
MURGUIA United States District Judge
matter comes before the court on plaintiff Ninoslava
Tomasic's Motion to Remand (Doc. 11). Defendant John
Tobin removed this case from Wyandotte County District Court
on January 22, 2018 on the basis of diversity jurisdiction.
Plaintiff now argues that diversity jurisdiction does not
exist because both plaintiff and defendant are citizens of
Kansas. For the reasons set forth below, the court grants
October 30, 2015, the decedent, Ivica Tomasic, was killed
after he lost control of his vehicle and rolled into a ditch
on the side of the road. Tomasic was driving on a wet road in
Kansas City, Kansas, and swerved to avoid striking
defendant's car, which had abruptly stopped in an
intersection. Plaintiff filed this action in Wyandotte County
District Court on October 27, 2017 seeking damages against
defendant in excess of $75, 000 for Tomasic's wrongful
death. In the Petition for Damages, defendant was listed as a
resident of Wyandotte, Kansas with a Kansas City, Kansas
address. On October 31, 2017, service attempts were made at
that address, however, someone at the home informed the
process server that defendant was not a resident.
Defendant's counsel eventually accepted service on his
behalf. In the notice of removal, filed January 22, 2018,
defendant claimed diversity of citizenship existed between
the parties and that “[d]efendant John Tobin resides in
Missouri at 127 W. 10th Street in Kansas City,
Missouri 64105.” Plaintiff filed a motion to remand to
state court on February 23, 2018.
argues this case should be remanded to state court for lack
of diversity jurisdiction. Plaintiff claims that defendant
has not sufficiently shown diversity of citizenship between
the parties because the only allegation in the notice of
removal was that defendant resides in Kansas City, Missouri.
Plaintiff argues residence and citizenship are not
synonymous, and that the evidence indicates defendant is a
citizen of Kansas.
district courts have jurisdiction over actions against
“citizens of different States.” 28 U.S.C. §
1332(a)(1). Diversity jurisdiction “must clearly appear
from the face of a complaint or removal petition . . .
.” Whitelock v. Leatherman, 460 F.2d 507, 514
(10th Cir. 1972). When diversity is challenged, the
“party asserting jurisdiction has the burden of proving
diversity by a preponderance of the evidence.”
Stucky By & Through Stucky v. Bates, 2 F.Supp.2d
1434, 1437 (D. Kan. 1998). A court must look to the time the
complaint was filed to determine whether diversity
jurisdiction exists. Freeport-McMoRan, Inc. v. K N
Energy, Inc., 498 U.S. 426, 428 (1991).
§ 1332, citizenship is based on where an individual is
domiciled. Id. To establish domicile, one must be
physically present in the state and intend to remain there.
Smith v. Cummings, 445 F.3d 1254, 1260 (10th Cir.
2006) (“To effect a change in domicile, two things are
indispensable: First, residence in a new domicile, and
second, the intention to remain there indefinitely.”).
An individual's residence alone is not enough to
establish domicile. See Siloam Springs Hotel, L.L.C. v.
Century Sur. Co., 781 F.3d 1233, 1238 (10th Cir. 2015).
Instead, a court must look to the totality of evidence to
determine where a person is domiciled, and may consider
“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.'” Stucky, 2
F.Supp.2d at 1437. And while there is a presumption favoring
an established domicile over a newly acquired one, “a
change of domicile is valid even if done for the purpose of
creating diversity, and no minimum period of residency is
defendant is asserting diversity jurisdiction, it is his
burden to show, by a preponderance of the evidence, that
diversity of citizenship exists. In considering the totality
of the of the evidence, the court considers the included
evidence that shows that defendant had listed a Kansas City,
Kansas address at the time of the accident, had a Kansas
driver's license, and at the time of the filing of the
complaint, still held that driver's license which
reflects that Kansas City, Kansas address. When service was
attempted on defendant at that address, however, the resident
informed the process server that defendant did not reside
there. Defendant removed the case to this court stating in
the removal petition simply that he currently resides in
Kansas City, Missouri. In response to plaintiff's motion
to remand, defendant alleged that he lives and works in
Missouri, pays taxes there, and intends to stay there, but he
has provided no evidence, beyond the fact that he resides at
a Kansas City, Missouri address, that he is domiciled in
Missouri. Without any evidence to support his assertions in
his response to plaintiff's motion to remand, the court
does not find that he has proven by a preponderance of the
evidence that diversity jurisdiction exists. See
Whitelock, 460 F.2d at 514 (finding parties had not
established diversity of citizenship when the original
complaint simply stated that plaintiff was a resident of Utah
and defendants were residents of Colorado and Texas.).
IS THEREFORE ORDERED that plaintiff's Motion to