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Jones v. L. F. Group

United States District Court, N.D. Mississippi, Oxford Division

July 12, 2018

DELOIS JONES, individually and on behalf of the wrongful death beneficiaries of DeANDRE JONES PLAINTIFF


         Now before this Court is Plaintiff Delois Jones' Amended Motion to Remand [17]. Having considered the matter, the Court finds that the motion should be denied.


         This action arises from the shooting death of Jones' son, DeAndre Jones. Jones alleges that on February 20, 2017, Defendant Larmont Burchett[1] shot and killed DeAndre in Byhalia, Mississippi. At the time the shooting occurred, Burchett was employed by Defendants L. F. Group, Inc. and Express Services, Inc.[2] Following the shooting, Burchett was arrested in Memphis, Tennessee. He remained in a correctional facility in Memphis until March 2018, when he was transferred to the Marshall County Jail in Mississippi.

         On February 16, 2018, Jones filed this wrongful death suit against Defendants in the Circuit Court of Marshall County, Mississippi. On April 18, 2018, L. F. Group removed the case to this Court, premising removal jurisdiction on diversity of citizenship under 28 U.S.C. § 1332. Jones now moves to remand the action back to state court arguing that (1) removal was untimely; and (2) there is not complete diversity of citizenship between the parties.


         Removal jurisdiction exists in any case where the federal court would have original jurisdiction. Gutierrez v. Flores, 543 F.3d 248, 251 (5th Cir. 2008); 28 U.S.C. § 1441(a). The removing party "bears the burden of showing that federal jurisdiction exists." Mumfrey v. CVS Pharmacy, Inc., 719 F.3d 392, 397 (5th Cir. 2013) (citing Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002)). "Any 'doubts regarding whether removal jurisdiction is proper should be resolved against federal jurisdiction.'" Vantage Drilling Co. v. Hsin-Chi Su, 741 F.3d 535, 537 (5th Cir. 2014) (quoting Acuna v. Brown & Root Inc., 200 F.3d 335, 339 (5th Cir. 2000)).

         I. Timeliness of Removal

         Jones first argues that L. F. Group did not remove this action in the time allowed by statute. Under 28 U.S.C. § 1446, a defendant has 30 days from the date of service of the initial pleading or summons to remove an action to federal court. 28 U.S.C. § 1446(b). L. F. Group filed its notice of removal on April 18, 2018. Jones attached a proof of service, an affidavit, and a worksheet filled out by the process server indicating that Diego Lejwa, L. F. Group's agent for service, was served in Tennessee with the summons and complaint on March 15, 2018, which was 30 days prior to April 18. [17-12, 17-13].

         L. F. Group contends, however, that Lejwa could not possibly have been served on March 15 because he was not in Tennessee at the time. Lejwa, in a signed declaration, stated that he was on vacation in Florida from March 13 to March 18, and that he was not served until March 19. Diego Lejwa Declaration [21-1] at 2. Lejwa also presented a travel itinerary issued to him and a list of service invoices made to a resort room in his name that occurred between March 13 and March 18. Id. at 20-23. Finally, Lejwa provided an email he sent to L.F. Group's legal counsel at 7:49 p.m. on March 19 stating that "I just [sic] been served papers for the case." Id. at 3.

         Although a proof of service is presumed to be correct, that presumption can be rebutted with sufficient evidence. See ACE Am. Ins. Co. v. Huttig Bldg. Prod., Inc., No. 3:10-CV-527-HTW-LRA, 2011 WL 3047640, at *4 (S.D.Miss. July 25, 2011). The Court finds that sufficient evidence has been presented showing that Lejwa was served on March 19, 2018. The declaration, itinerary, and invoices all indicate that Lejwa was, in fact, in Florida from March 13, 2018 to March 18, 2018. Further, his email to legal counsel on March 19 that he had "just" been served supports the contention that he had actually been served that day. Accordingly, the Court finds that, because L. F. Group was served on March 19, 2018, its removal to this Court on April 18, 2018, was timely.

         II. Diversity of Citizenship

         Jones next argues that there is not complete diversity between the parties because both she and Larmont Burchett are citizens of Mississippi. Federal jurisdiction under § 1332 exists in actions between citizens of different states, where the amount in controversy exceeds $75, 000.[3] 28 U.S.C. § 1332(a). "Complete diversity of citizenship" is required, meaning that "the citizenship of each plaintiff is diverse from the citizen of each defendant." Caterpillar Inc. v. Lewis, 519 U.S. 61, 68, 117 S.Ct. 467, 472, 136 L.Ed.2d 437 (1996).

         For purposes of diversity jurisdiction, an individual's citizenship is usually his domicile. See Coury v. Prot, 85 F.3d 244, 249 (5th Cir. 1996). "A person's domicile is the place of' his true, fixed, and permanent home and principal establishment, and to which he has the intention of returning whenever he is absent therefrom .. . .'" Mas v. Perry, 489 F.2d 1396, 1399 (5th Cir. 1974) (quoting Stine v. Moore, 213 F.2d 446, 448 (5th Cir. 1954)). "Domicile" and "residence" are not synonymous. Combee v. Shell Oil Co., 615 F.2d 698, 700 (5th Cir. 1980) (citing Mas, 489 F.2d at 1399). Nonetheless, "[e]vidence of a person's place of residence ... is prima facie proof of his domicile." Hollinger v. Home State Mut. Ins. Co., 654 F.3d 564, 571 (5th Cir. 2011) (citations omitted).

         "A person acquires a 'domicile of origin' at birth, and this domicile is presumed to continue absent sufficient evidence of change." Acridge v. Evangelical Lutheran Good Samaritan Society,334 F.3d 444, 448 (5th Cir. 2003) (quoting Palazzo v. Corio,232 F.3d 38, 42 (2d Cir. 2000)). That domicile "persists until a new one is acquired or it is clearly abandoned." Coury, 85 F.3d at 250. Thus, "[t]here is a presumption in favor of the continuing domicile which requires the party seeking to show a ...

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