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Brown v. Tappan

United States District Court, S.D. Mississippi, Northern Division

April 11, 2017

JANA M. BROWN PLAINTIFF
v.
FREDERICK TAPPAN AND JOHN AND JANE DOES 1-10 DEFENDANTS

          ORDER

          DANIEL P. JORDAN III UNITED STATES DISTRICT JUDGE

         This removed case is before the Court on Plaintiff Jana M. Brown's Motion to Remand [18]. Having fully considered the parties' memoranda and submissions, along with the pertinent authorities, the Court finds that diversity jurisdiction exists, so Brown's motion should be denied.

         I. Facts and Procedural History

         This case stems from a September 2015 car accident involving Brown, a resident citizen of Mississippi, and Defendant Frederick Tappan, a college student residing in Mississippi. Pl.'s Compl. [1-1]. In response to the accident, Brown filed suit in the Circuit Court of Hinds County, Mississippi, on February 23, 2016. Notice of Removal [1] ¶ 1. On July 11, 2016, Tappan removed the case to this Court based on diversity jurisdiction, and the parties thereafter conducted jurisdictional discovery. When that discovery concluded, Brown moved to remand, acknowledging that the Notice of Removal was timely filed but arguing that Tappan is a non-diverse Mississippi citizen. Pl.'s Mot. [18] at 1; Pl.'s Mem. [19] at 2. Tappan responded that he is a Tennessee citizen [20], and Brown replied [21]. The Court, having considered the parties' arguments and relevant authority, is now prepared to rule.

         II. Standard

         Under 28 U.S.C. § 1441(a), “any civil action brought in a State court of which the district courts of the United States have original jurisdiction[] may be removed by the defendant” to federal district court. Tappan argues that removal to this Court is proper under 28 U.S.C. § 1332(a)(1), which grants the district courts original jurisdiction over civil actions between “citizens of different States” in which “the matter in controversy exceeds the sum or value of $75, 000.” The parties here do not contest the amount-in-controversy requirement, thus the sole question is whether complete diversity of citizenship exists.

         From the outset, there is a presumption against a federal court having jurisdiction. Coury v. Prot, 85 F.3d 244, 248 (5th Cir. 1996). The party invoking federal jurisdiction must rebut that presumption. Id. Likewise, if “diversity jurisdiction is properly challenged, that party also bears the burden of proof.” Mas v. Perry, 489 F.2d 1396, 1399 (5th Cir. 1974) (citations omitted). Because Tappan invoked this Court's jurisdiction, he now must establish it by a preponderance of the evidence. Preston v. Tenet Healthsystem Mem'l Med. Ctr., Inc., 485 F.3d 804, 814 (5th Cir. 2007). In determining whether Tappan has met that burden, the Court “may look to any record evidence, and may receive affidavits, deposition testimony or live testimony concerning the facts underlying the citizenship of the parties.” Coury, 85 F.3d at 249.

         III. Analysis

         The issue is whether Tappan, a college student over the age of 21, is a non-diverse citizen of Mississippi or a diverse citizen of Tennessee. For purposes of the complete-diversity requirement, citizenship means domicile. Mas, 489 F.2d at 1399. A person acquires a “domicile of origin” at birth. Acridge v. Evangelican Lutheran Good Samaritan Soc'y, 334 F.3d 444, 448 (5th Cir. 2003). That “domicile of origin” continues unless there is sufficient evidence of a change. Id. A party establishes such a change by showing (1) “physical presence at the new location” and (2) “an intention to remain there indefinitely.” Coury, 85 F.3d at 250.

         Here, there is no dispute that Tappan was born in Tennessee, so Tennessee is his domicile of origin. But he and his parents moved to Mississippi in 2010, and he has remained in this state since then to attend school. Given his presence in this state, the question is whether his domicile changed from his domicile of origin-Tennessee-at any time before this suit was filed.

         To answer that question, the Court looks first to the domicile of Tappan's parents. Tappan was a minor when he and his parents moved to Mississippi. “Since most minors are legally incapable of forming the requisite intent to establish a domicile, their domicile is determined by that of their parents.” Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989). So if Tappan's parents changed their domicile from Tennessee to Mississippi before Tappan turned 21, Tappan's domicile likewise changed.

         There is no dispute that Tappan's parents moved to Mississippi at one point, so the question is whether they intended to remain in Mississippi indefinitely. Coury, 85 F.3d at 250. When determining intent to remain, courts consider several factors, no single one being determinative. Id. at 251. Factors include the “places where the litigant exercises civil and political rights, pays taxes, owns real and personal property, has driver's and other licenses, maintains bank accounts, belongs to clubs and churches, has places of business or employment, and maintains a home for his family.” Id. Courts determine domicile in light of these objective facts; if a litigant's statement of intent conflicts with them, that statement-though relevant-is entitled to little weight. Id.

         On this standard, the Court finds that Tappan's parents remained Tennessee citizens. To begin with, they lived in Memphis, Tennessee, at least from the time Tappan was born in 1994 through his tenth-grade year in high school. Tappan Dep. [18-1] at 7, 12. But after the tenth grade, Tappan had a spat with his football coach and wanted to transfer. Id. at 12. Had he transferred to a school within 20 miles, he would have lost a year of athletic eligibility, so in 2010, he and his family moved to a house in Southaven, Mississippi, that they had previously purchased as an investment property. Id. at 8, 12, 41. Despite this move, the family retained their Tennessee home, id. at 7, and maintained contacts in Tennessee. For example, Tappan's sister remained in a Memphis school, id. at 36, and it appears that Tappan's father pastored a church in Memphis, see Def.'s Resp. [20] at 2, 4. Once Tappan completed high school two years later, his parents returned to their Tennessee home, where they still reside with Tappan's sister, great grandfather, and grandmother. Tappan Dep. [18-1] at 7, 20. No one currently resides at the Southaven address, id. at 8, and Tappan's parents do not stay there, id. at 9. Finally, Tappan's father owns the vehicle Tappan was driving at the time of the accident; the vehicle is titled in Memphis and has a Tennessee license plate. Id. at 33-34.

         Against these facts, Brown notes that Tappan's parents obtained a homestead exemption on the Mississippi residence, but this fact is not alone determinative. See Wolf Network, LLC v. AML Diagnostics, Inc., No. 3:15-CV-3797-B, 2016 WL 1242628, at *2 (N.D. Tex. Mar. 30, 2016) (“Even if Wilson did take a homestead exemption for the Texas property, this alone is not enough to outweigh the evidence suggesting he is a Florida citizen.”) (citing Cox, Cox, Filo, Camel & Wilson, LLC v. Sasol N. Am., Inc., No. 2:11-CV-0856, 2012 WL 262613, at *4-5 (W.D. La. Jan. 30, 2012), aff'd, 2012 WL ...


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