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Estate of Cochran v. Marshall

United States District Court, M.D. Florida, Tampa Division

November 30, 2017

ESTATE OF SALLY ANN COCHRAN, BY AND THROUGH ITS PERSONAL REPRESENTATIVE MICHAEL PEVARNEK Plaintiff,
v.
LACEY MARSHALL and SAMANTHA MARSHALL, Defendants.

          ORDER

          Charlene Edwards Honeywell United States District Judge

         This matter comes before the Court upon the Plaintiff's Motion for Remand (Doc. 15), and Defendants' response in opposition (Doc. 16). In the motion, Plaintiff states that the Court should remand this action to state court because Defendant Lacey Marshall has been and remains a resident of the State of Florida thereby eliminating complete diversity between himself and the Defendants. The Court must determine whether, at the time of the filing of the Complaint and its removal to this Court, Lacey Marshall was a citizen of Michigan. Because the evidence demonstrates by a preponderance that Lacey Marshall established her domicile in Michigan prior to the filing of the Complaint, complete diversity exists in this action. The Court, having considered the Motion and being fully advised in the premises, will deny Plaintiff's Motion for Remand.

         I. BACKGROUND

         The decedent, Sally Ann Cochran, died on April 26, 2017. Doc. 2 at ¶ 2. At the time of her death she was a full time resident of Polk County, Florida. Id. The Probate Court in Polk County appointed her brother Michael Pevarnek, as Personal Representative for her probate estate. Id. at ¶ 3. On June 23, 2017, Pevarnek, in his representative capacity, initiated a civil action in Polk County, Florida. See generally id. The suit alleges that Cochran's adult granddaughters Lacey Marshall and Samantha Marshall unlawfully converted her assets and funds, engaged in a civil conspiracy to deprive Cochran of her funds and otherwise exploited her. Id. at ¶¶ 10, 13-17, 19-22, 24-31.

         Defendants removed the case to this Court asserting that it met the requirements for diversity jurisdiction. See generally Doc. 1. The Notice of Removal asserts that Pevarnek, as Personal Representative for Cochran's estate, takes the citizenship of Cochran, who was domiciled in Florida at the time of her death. Id. at ¶ 6. Plaintiff does not dispute either that the case meets the minimum threshold for the amount in controversy or that Defendant Samantha Marshall is a citizen of Michigan. Doc. 15 at ¶¶ 7, 9-10. But he asserts, “upon information and belief, ” that Defendant Lacey Marshall is a Florida resident. Id. at ¶ 10, 11[1]. Therefore, Plaintiff argues, complete diversity does not exist in this case and the Court lacks subject matter jurisdiction, requiring remand to state court.

         II. LEGAL STANDARD

         “The jurisdiction of a court over the subject matter of a claim involves the court's competency to consider a given type of case, and cannot be waived or otherwise conferred upon the court by the parties.” Jackson v. Seaboard Coast Line R.R. Co., 678 F.2d 992, 1000 (11th Cir. 1982). “Federal courts are courts of limited jurisdiction.” U. of S. Alabama v. Am. Tobacco Co., 168 F.3d 405, 409 (11th Cir. 1999). And “once a federal court determines that it is without subject matter jurisdiction, the court is powerless to continue.” Id. at 410.

         Diversity jurisdiction exists where the suit is between citizens of different states and the amount in controversy exceeds $75, 000. 28 U.S.C. § 1332(a)(1)-(3). In order for diversity jurisdiction to exist under 28 U.S.C. § 1332, each defendant must be diverse from each plaintiff. See Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 377 (1978) (“Congress has established the basic rule that diversity jurisdiction exists under 28 U.S.C. § 1332 only when there is complete diversity of citizenship.”). 28 U.S.C. § 1441(a) permits a defendant to remove, as a general matter, “any civil action brought in a State court of which the district courts of the United States have original jurisdiction….” A party removing a case to federal court based on diversity of citizenship bears the burden of establishing the citizenship of the parties. Rolling Greens MHP, L.P. v. Comcast SCH Holdings, LLC., 374 F.3d 1020, 1022 (11th Cir. 2004). “Because removal jurisdiction raises significant federalism concerns, federal courts are directed to construe removal statutes strictly, ” and “all doubts about jurisdiction should be resolved in favor of remand to state court.” Univ. of S. Ala, 168 F.3d at 411. The determination of diversity requires examination of “the plaintiff's pleadings at the time of removal.” Cabalceta v. Standard Fruit Co., 883 F.2d 1553, 1561 (11th Cir. 1989).

         “In order for defendants to be able to remove this case to federal court based on diversity, diversity must have existed at both the time the complaint was originally filed and at the time of removal.” Goff v. Michelin Tire Corp., 837 F.Supp. 1143, 1144 (M.D. Ala. 1993) (citing Stevens v. Nichols, 130 U.S. 230 (1889)). See also Garza v. Midland Nat. Ins. Co., 256 F.Supp. 12, 13 (S.D. Fla. 1966). “Citizenship is equivalent to ‘domicile' for purposes of diversity jurisdiction.” McCormick v. Aderholt, 293 F.3d 1254, 1257 (11th Cir. 2002). “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.” Sunseri v. Macro Cellular Partners, 412 F.3d 1247, 1249 (11th Cir. 2005) (internal quotation marks omitted).

         The Court makes its determination as to a party's domicile by reviewing several types of evidence, including but not limited to, the party's affidavit, deposition testimony, driver's license, tax returns, banking statements, voter registration, medical records, utility phone bills, employment records, vehicle registration, professional licenses, membership in religious, recreational and business organizations, location of real property and place of employment. See e.g., id; Audi Performance & Racing, LLC v. Kasberger, 273 F.Supp.2d 1220, 1226 (M.D. Ala. 2003).

         III. DISCUSSION

         The Notice of Removal alleges that: Lacey Marshall and Samantha Marshall are Michigan residents, “domiciled in Wayne County, Michigan, ” Doc. 1 at ¶ 4; Plaintiff is a citizen of Florida; id. at ¶ 6; the amount in controversy is at least $240, 350, the amount of the assets at issue in the case, id. at ¶ 7; and this Court has original diversity jurisdiction over this action pursuant to 28 U.S.C. § 1332 because the parties are citizens of different states and the amount in controversy exceeds $75, 000. Id. at ¶ 9. The Notice of Removal sufficiently alleged that both Defendants were citizens of Michigan and Plaintiff was a citizen of Florida[2], thereby establishing on its face that complete diversity existed.

         Plaintiff challenges those allegations with certified documents meant to suggest that Lacey Marshall was a resident of Florida both at the time the complaint was filed and at the time of removal. Specifically, Pevarnek filed a certified copy of the official record and transcript for Lacey Marshall's Florida driver's license. Doc. 15-1. Her Florida driver's license was unexpired when he filed the Complaint. Id. He also filed a certified copy of the Voter Registration Receipt and Voter History Report maintained by the Supervisor of Elections for Polk County, Florida which demonstrate that Lacey Marshall voted in the 2016 elections as an active registered voter in Florida. See Doc. 15-2. Lacey Marshall does not dispute this evidence.

         But the evidence and arguments are insufficient to either establish that Lacey Marshall is a citizen of Florida or challenge the Defendants' Notice of Removal. The Motion for Remand focuses on Lacey Marshall's residence, not her citizenship.[3] The Eleventh Circuit has repeatedly stressed that “[c]itizenship, not residence, is the key fact that must be alleged ... to establish diversity for a natural person.” Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994). Although Plaintiff has not properly challenged the factual basis for diversity jurisdiction, assuming he did, the ...


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