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Pell v. Warden

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

November 4, 2019

HOLBERT PELL and DIANE PELL, the wrongful death beneficiaries of Ryan Pell, and THE ESTATE OF RYAN PELL PLAINTIFFS
v.
JASON WARDEN and TRANSPORT AMERICA DEFENDANTS

          OPINION AND ORDER

          MICHAEL P. MILLS UNITED STATES DISTRICT JUDGE

         This cause comes before the court on the motion of the plaintiffs to remand this case to the Circuit Court of Tippah County, Mississippi. Defendants have responded in opposition to the motion, and the Court, having considered the memoranda and submissions of the parties, is now prepared to rule.

         Facts

         This matter was originally filed by plaintiffs Holbert Pell and Diane Pell, the alleged wrongful death beneficiaries of the deceased Ryan Pell, and the estate of Ryan Pell against defendants Jason Warden and Transport America in the Circuit Court of Tippah County, Mississippi, on the 23');">3rd day of August, 2018.

         Ryan Pell (hereinafter “Pell”), was allegedly pushing his bicycle on the shoulder or in the roadway of United States Highway 72 near Walnut, Mississippi on September 4, 2015 when he was struck and killed by a tractor trailer operated by defendant Jason Warden and owned by defendant Transport America.

         On September 27, 2018, defendants timely removed the case to this Court. Plaintiffs then filed a motion to remand on April 18, 2019 with an attached memorandum and affidavit by Pell&#3');">39;s sister Tiffany Layne (hereinafter “Layne”), stating that Pell was domiciled in Tennessee, as is Defendant Warden, thus arguing that complete diversity does not exist.

         Standard

         “[A]ny 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 or the defendants […].” 28 United States Code § 1441(a). “Under the federal removal statute, a civil action may be removed from a state court to a federal court on the basis of diversity ... because the federal court has original subject matter jurisdiction over such cases.” International Energy Ventures Management., Limited Liability Company. v. United Energy Group, Limited, 818 F.3');">3d 193');">3, 199 (5th Cir. 2016) (citing 28 U.S.C. § 1441(a)). “On a motion to remand, ‘[t]he removing party bears the burden of showing that federal jurisdiction exists and that removal was proper.&#3');">39;” Barker v. Hercules Offshore, Inc., 3');">3 F.3');">3d 208');">713');">3 F.3');">3d 208, 212 (5th Cir. 2013');">3) (citing Manguno v. Prudential Prop. & Cas. Inc. Co., 276 F.3');">3d 720');">276 F.3');">3d 720, 722 (5th Cir. 2002)).

         Ultimately, “removal statutes are to be construed strictly against removal and for remand.” Eastus v. Blue Bell Creameries, L.P., 3');">3d 100');">97 F.3');">3d 100, 106 (5th Cir. 1996) (citing Shamrock Oil & Gas Corp. v. Sheets, 3');">313');">3 U.S. 100, 108-09, 61 S.Ct. 868, 872, 214');">85 L.Ed. 1214 (1941)). And “[a]ny ambiguities are construed against removal.” Manguno, 276 F.3');">3d at 723');">3 (citing Acuna v. Brown & Root, Inc., 200 F.3');">3d 3');">33');">35');">200 F.3');">3d 3');">33');">35, 3');">33');">39 (5th Cir. 2000)).

         When evaluating whether diversity jurisdiction exists, the court is to look at “the domicile of the parties, as opposed to their residence.” Combee v. Shell Oil Co., 2d 698');">615 F.2d 698, 700 (5th Cir. 1980). “‘The concept of complete diversity requires that all persons on one side of the controversy be citizens of different states than all persons on the other side.&#3');">39;” McLaughlin v. Mississippi Power Company, 3');">376 F.3');">3d 3');">344');">3');">376 F.3');">3d 3');">344, 3');">353');">3 (5th Cir. 2004) (quoting Harrison v. Prather, 2d 267');">404 F.2d 267, 272 (5th Cir. 1968)). To defeat the presumption of continuing domicile, the following elements must be present: (1) residence in a new state, and (2) intent to remain in that state indefinitely. Id. (citing Coury v. Prot, 3');">3d 244');">85 F.3');">3d 244, 25');">250 (5th Cir. 1996). “Evidence of a person&#3');">39;s place of residence is prima facie proof of his domicile.” Stine v. Moore, 213');">3 F.2d 446');">213');">3 F.2d 446, 448 (5th Cir. 1954). However, the court must consider “the actual fact of [a party&#3');">39;s] residence and [his or her] real intention of remaining there, as disclosed by [the party&#3');">39;s] entire course of conduct” Id.

         Discussion

         Plaintiffs allege Pell was domiciled in Tennessee, as is defendant Warden, thus eliminating complete diversity. Defendants argue that Pell was domiciled in Georgia, thus creating complete diversity. Plaintiffs argue Layne&#3');">39;s affidavit is sufficient to prove Pell was domiciled in Tennessee, while defendants argue that multiple documents, as well as Pell&#3');">39;s estate being opened in the Probate Court of Walker County, Georgia, all establish that Pell was domiciled in Georgia.

         A. Establishing Domicile

         The question presented is one of domicile. In particular, was Pell domiciled in Georgia or did his domicile change to Tennessee eight months prior to his death? The Fifth Circuit in Coury v. Prot found that “[a] change in domicile typically requires only the concurrence of: (1) physical presence at the new location and (2) an intention to remain there indefinitely […].”3');">3d 244');">85 F.3');">3d 244, 25');">250 (5th Cir. 1996). To determine Pell&#3');">39;s domicile, the Court “[…] is not limited to the pleadings; it may look to any record evidence, and may receive affidavits, deposition testimony or live testimony concerning the facts underlying the citizenship of the parties.” Id.249. Abiding by Coury, this Court will apply the factors used in that decision to determine Pell&#3');">39;s domicile. The factors “include the places where the litigant exercises civil and political ...


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