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, Clark J. Levi and Alvix Laboratories, LLC. After
due consideration of the parties' submissions concerning
diversity jurisdiction and the relevant law, it is the
Court's opinion that it has subject-matter jurisdiction
over the parties in this case. Accordingly, the
defendants' Motion to Dismiss will be denied.
case involves breach of contract and related claims. The
Complaint alleges that the plaintiff is a resident of
Florida, the defendant Clark J. Levi is a resident of
Mississippi, and the defendant Alvix Laboratories, LLC is a
Mississippi Limited Liability Company whose only member is
Clark J. Levi. (Compl. 1, 2, ECF No. 1.) Jurisdiction is
based on the alleged diversity of the parties.
defendants filed the motion now before the Court seeking
dismissal for lack of subject-matter jurisdiction, arguing
that complete diversity does not exist because the plaintiff
is actually a citizen of Mississippi, not Florida.
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, like them, the plaintiff
was a resident of Mississippi when he filed this lawsuit in
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. Dep't 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
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 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). The plaintiff in this case bears both
of these burdens, as he has invoked federal jurisdiction and
his citizenship has been challenged.
of a person is determined by where the person 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 is, however, more than where
the party resides - it is the place a person calls home.
Thus, when determining a party's domicile, a court looks
to such factors as where the person resides, where he works,
goes to school, pays his taxes, is registered to vote, the
place of his drivers license, and location of family.
Quebe v. Ford Motor Co., 908 F.Supp. 446, 449 (W.D.
Tex. 1995). 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.
defendants attack the factual basis of the Court's
diversity jurisdiction with the following documents, which
they assert show that the plaintiff is a resident of
Mississippi: 1) a complaint filed in December 2016 by the
plaintiff in a separate state court lawsuit which alleges
that plaintiff resides in Ocean Springs, Mississippi; 2) a
docket sheet in the state court proceedings showing the
plaintiff's address in Ocean Springs, Mississippi; 3) a
Deed of Trust executed by the plaintiff for property in Ocean
Springs, Mississippi, dated October 29, 2018; 4) two
Mississippi Secretary of State records showing the
plaintiff's Ocean Springs, Mississippi address for a
corporation dissolved in 2003 and an LLC dissolved in 2012;
5) a Mississippi Secretary of State record showing the
plaintiff's Ocean Springs address for an LLC formed in
2011 and currently in good standing; 6) a Mississippi
Secretary of State record showing the plaintiff's
wife's Ocean Springs address for an LLC formed in 2008
and currently in good standing; 7) a sales contract executed
by the plaintiff in 2017 as manager of a Mississippi LLC; 8)
a list of real property owned by the plaintiff in Jackson
County, Mississippi; 9) a second deed of trust executed by
the plaintiff in December 2008 listing his address in Ocean
Springs, Mississippi; and 10) a release of a deed of trust
for property in Ocean Springs, Mississippi dated December
2008. (Mot. to Dismiss Exs. A-K, ECF Nos. 7-1 to 7-11.)
plaintiff argues that he correctly alleged his own Florida
residence. He supports his allegation with an affidavit
stating that on the date he filed this Complaint, and at
least ten years prior, he lived in Florida. (Pl. Resp. Ex. A,
ECF No. 10-1.) As of the date of filing, he possessed a
Florida driver's license, was registered to vote in
Florida, had an automobile registered in Florida, and filed a
federal tax return listing a Florida address. He asserts he
has never paid Mississippi income taxes, had a Mississippi
driver's license, or been registered to vote in
Mississippi; he has only had a secondary residence in
Mississippi. Copies of documents supporting a number of these
statements are attached to his affidavit. He asserts that his
attorney erred in alleging he was a resident of Mississippi
in the state court complaint, since he was and intends to
remain a permanent citizen of Florida.
evidence provided weighs in favor of Florida as the
plaintiff's residence. The plaintiff clearly has property
and business interests in Mississippi, but the factors
indicating his domicile point to Florida. He makes his home
in Florida and states he intends to remain there
indefinitely. For these reasons, the Court finds that it ...