United States District Court, M.D. Florida, Orlando Division
THOMAS H. BROOKS, JR., Plaintiff,
SEARS, ROEBUCK AND CO., Defendant.
DALTON JR. UNITED STATES DISTRICT JUDGE.
cause comes before the Court for review of U.S. Magistrate
Judge Daniel C. Irick's Report, recommending that the
Court remand this case for lack of subject matter
jurisdiction. (Doc. 15
(“R&R”).) Defendant objects.
(Doc. 19.) On de novo review, the Court finds that
the R&R is due to be adopted and this case remanded.
initiated this premise liability action in state court. (Doc.
2 (“Complaint”).) Purporting to
invoke the Court's diversity jurisdiction, Defendant
removed the action here. (Doc. 1
(“Notice”).) On sua
sponte review, Magistrate Judge Irick found that
Defendant failed to establish the requirements for diversity
jurisdiction and directed Defendant to show cause why this
cause should not be remanded for lack of subject matter
jurisdiction. (Doc. 7 (“Show Cause
Order”).) Specifically, Magistrate Judge Irick
found deficient Defendant's: (1) allegation concerning
Plaintiff's citizenship, which improperly relied on the
Complaint's residency allegation; and (2) sole reliance
on Plaintiff's $135, 000 settlement proposal
(“Settlement Proposal”) to
establish that the amount in controversy exceeded the
jurisdictional threshold. (Id. at 2-3.)
response, Defendant chose not to submit additional evidence
to support the existence of subject matter jurisdiction;
instead, it stood on the strength of the allegations in its
Notice and the Settlement Proposal. (See Doc. 10.)
With respect to the complete diversity requirement, Defendant
argued that Plaintiff's residence is prima facie evidence
that Plaintiff is a Florida domiciliary and therefore he is a
Florida citizen. (Id. at 7-8.) As for the amount in
controversy requirement, Defendant argued that the Show Cause
Order failed to appreciate the distinction between the
Settlement Proposal, which courts have held to satisfy the
amount in controversy, and informal settlement demands.
(Id. at 4-6.)
Defendant's arguments unpersuasive, Magistrate Judge
Irick issued his R&R concluding that Defendant had failed
to carry its burden of proving the existence of complete
diversity or the requisite amount in controversy.
(See Doc. 15, pp. 7-9.) Defendant objected (Doc.
19), and the matter is now ripe.
party objects to a magistrate judge's findings, the
district court must “make a de novo determination of
those portions of the report . . . to which objection is
made.” 28 U.S.C. § 636(b)(1). The district court
“may accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate
judge.” Id. The district court must consider
the record and factual issues based on the record independent
of the magistrate judge's report. Ernest S. ex rel.
Jeffrey S. v. State Bd. of Educ., 896 F.2d 507, 513
(11th Cir. 1990).
courts are courts of limited jurisdiction. To guard against
unwarranted expansion of this jurisdiction in diversity
cases, the parties must be completely diverse and the amount
in controversy must exceed $75, 000. 28 U.S.C. §
1332(a). In the removal context, the defendant bears the
burden of proving by a preponderance of the evidence that
jurisdiction exists. Williams v. Best Buy Co., 269
F.3d 1316, 1319 (11th Cir. 2001).
Diversity of Citizenship.
argues that the R&R erroneously concluded that it did not
sufficiently allege complete diversity. (Doc. 19, pp. 9-10.)
Reiterating its position that residency is prima facie
evidence of domicile, which equates to citizenship, Defendant
submits the Notice sufficiently alleged Plaintiff's
Florida citizenship. (Id. at 10.) Defendant is
wrong. Residence alone is insufficient to
demonstrate a person's citizenship for purposes of
diversity jurisdiction. Travaglio v. Am. Express
Co., 735 F.3d 1266, 1269 (11th Cir. 2013); see also
Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994)
(“Citizenship, not residence, is the key fact that must
be alleged in the complaint to establish diversity for a
natural person.”). As Defendant provided no other
evidence to support Plaintiff's citizenship, it has
failed to establish complete diversity.
Defendant disingenuously suggests that Plaintiff's
refusal to respond to its discovery requests prevented it
from suppling additional information (Doc. 19, p. 4 n.1), the
Court finds this argument unavailing. Defendant, not
Plaintiff, bears the burden of establishing the parties'
citizenship. See Rolling Greens MHP, L.P. v. Comast
SCH Holdings LLC, 374 F.3d 1020, 1022 (11th
Cir. 2004). Surely public records exist that could have
supported Defendant's domicile contention, had it cared
to search. See, e.g., Akkan v. Nationstar Mortg.
LLC, No. 1:16-cv-1999-WSD-LTW, 2016 WL 11260335, at *1
(N.D.Ga. Nov. 16, 2016) (setting forth the factors a court
considers in making a domicile determination including,
property records, voter registration, employment records, and