United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER DENYING MOTION TO
GUIROLA, JR., UNITED STATES DISTRICT JUDGE
THE COURT is the  Motion to Dismiss filed by the
defendants, Bay Pool Company Construction, LLC and Adam
Landrum. After the plaintiff responded to the motion, the
defendants filed a  Supplemental Motion to Dismiss. The
plaintiffs moved to  Strike the Supplemental Motion to
the Court's opinion that the “supplemental motion
to dismiss” should be construed as a rebuttal to the
plaintiffs' response to the Motion to Dismiss. The
Supplemental Motion to Dismiss is therefore rendered moot,
and the motion to strike it will be denied. Further, after
due consideration of the parties' submissions concerning
diversity jurisdiction and the relevant law, it is the
Court's opinion that it has jurisdiction over the parties
in this case. Accordingly, the defendants' Motion to
Dismiss will be denied.
a breach of contract action. The plaintiff Lee Swimming
Pools, LLC sold the assets of Bay Pool Company, LLC to Bay
Pool Company Construction, LLC (“BPCC”) for $200,
000 in February 2016. The contract provided for a $50, 000
down payment, with the remaining $150, 000 to be paid by
monthly payments calculated from monthly sales and supplier
rewards. (Am. Compl. Ex. A, at 1-2, ECF No. 3-1.) The
plaintiff alleges that BPCC stopped making payments after
August 2017, when the outstanding balance was $96, 988.10.
(Am. Compl. 3, ECF No. 3.) The plaintiff's claims against
BPCC and its president Adam Landrum are for breach of
contract, tortious breach of contract, breach of the implied
duty of good faith and fair dealing, and unjust enrichment.
Jurisdiction is based on the alleged diversity of the
parties; BPCC and Landrum are alleged to be a citizens of
Louisiana, while the plaintiff is alleged to be a citizen of
defendants filed the motion now before the Court seeking
dismissal for lack of subject matter jurisdiction, arguing
that complete diversity does not exist because defendant Adam
Landrum is actually a citizen of Mississippi.
DIVERSITY OF CITIZENSHIP
plaintiff seeking to recover in a federal court has the
burden to show that there was complete diversity of
citizenship when the complaint was originally filed.
Arena v. Graybar Elec. Co., 669 F.3d 214, 224 (5th Cir.
2012). The defendants argue that the plaintiff cannot show
complete diversity because Defendant Adam Landrum was a
resident of Mississippi when this lawsuit was filed in April
2018. They support this argument with three bills for
services at a Bay St. Louis, Mississippi address and
applications to rent unidentified property.
defendant makes a “factual” attack on a
court's subject-matter jurisdiction, the court is
“free to weigh the evidence and satisfy itself as to
the existence of its power to hear the case.”
Morris v. U.S. Dept. of Justice, 540 F.Supp. 898,
900 (S.D. Tex. 1982) aff'd, 696 F.2d 994 (5th
Cir. 1983). “[F]ederal courts must address
jurisdictional questions whenever they are raised and must
consider jurisdiction sua sponte if not raised by the
parties.” Howery v. Allstate Ins. Co., 243
F.3d 912, 919 (5th Cir. 2001) (citing Kidd v. Sw.
Airlines, Co., 891 F.2d 540, 546 (5th Cir. 1990));
see also Griffin v. Lee, 621 F.3d 380, 383-84 (5th
party is a person, citizenship is determined by where the
party is domiciled. Hendry v. Masonite Corp., 455
F.2d 955 (5th Cir. 1972) (“For purposes of federal
diversity jurisdiction ‘citizenship' and
‘domicile' are synonymous.”). Domicile
requires the demonstration of two factors: residence and the
intention to remain for an unlimited time. Freeman v. Nw.
Acceptance Corp., 754 F.2d 553, 555 (5th Cir. 1985);
see also Garcia v. Koch Oil Co. of Tex. Inc., 351
F.3d 636, 638-39 (5th Cir. 2003). A person's state of
domicile presumptively continues unless rebutted with
sufficient evidence of change. Preston v. Tenet
Healthsystem Mem'l Med. Ctr., Inc., 485 F.3d 793,
797-98 (5th Cir. 2007). An allegation of citizenship in the
new state is not sufficient. “When a person's
citizenship is challenged, the burden rests with that person
to establish her citizenship by a preponderance of the
evidence.” Costopoulos v. Uber Techs., Inc.,
No. CV 18-3590, 2018 WL 4739693, at *4 (E.D. La. Oct. 2,
2018) (citing Preston, 485 F.3d at 798). The Fifth
Circuit has explained that “the party attempting to
show a change [in domicile] assumes the burden of going
forward on that issue. The ultimate burden on the issue of
jurisdiction rests with the plaintiff or the party invoking
federal jurisdiction.” Coury v. Prot, 85 F.3d
244, 250-51 (5th Cir. 1996).
determine “whether a person has changed his domicile,
courts look at many factors.” Acridge v. Evangelical
Lutheran Good Samaritan Society, 334 F.3d 444, 448 (5th Cir.
2003). They 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.” Coury, 85 F.3d at 251.
“Domicile is . . . evaluated in terms of objective
facts.” Freeman, 754 F.2d at 556.
Landrum attacks the factual basis of the Court's
diversity jurisdiction with 1) his affidavit stating that the
statements in his motion to dismiss are true and correct,
including that he is a resident of Mississippi residing at
419 Third Street in Bay St. Louis, Mississippi; 2) a bill
dated October 24, 2017 from AT&T for new service,
addressed to him at 419 Third Street in Waveland (Def. Mot.
Ex. A, ECF No. 9-2); 3) two water bills addressed to Whittney
Landrum for service at 419 Third Street in November 2017 and
March 2018 (Def. Mot. Ex. B, ECF No. 9-3); and 3) two
separate rental applications dated October 11, 2017, signed
by Adam Landrum and Whittney Landrum, for an unidentified
property. (Def. Reb. Ex. B, ECF No. 14-2.) Both applications
state “we are the homeowners” of 30939 Ridgeway
Drive in Walker, Louisiana. (Id.)
plaintiff argues that it correctly alleged Adam Landrum's
Louisiana citizenship, because public records maintained by
the Mississippi Secretary of State show that BPCC is a
Louisiana Limited Liability Company and that “Manager,
Member, President” Adam Landrum's address is 30939
Ridgeway Drive in Walker, Louisiana. (Pl. Resp. Ex. A, ECF
No. 12-1.) The Court notes that the ...