United States District Court, N.D. Mississippi, Oxford Division
DELOIS JONES, individually and on behalf of the wrongful death beneficiaries of DeANDRE JONES PLAINTIFF
L. F. GROUP, DEFENDANTS
before this Court is Plaintiff Delois Jones' Amended
Motion to Remand . Having considered the matter, the
Court finds that the motion should be denied.
action arises from the shooting death of Jones' son,
DeAndre Jones. Jones alleges that on February 20, 2017,
Defendant Larmont Burchett 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. 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.
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.
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)).
Timeliness of Removal
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].
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.
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.
Diversity of Citizenship
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. 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).
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).
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 ...