United States District Court, W.D. Louisiana, Monroe Division
REPORT AND RECOMMENDATION
L. HAYES UNITED STATES MAGISTRATE JUDGE
the undersigned magistrate judge, on reference from the
District Court, is a motion to remand [doc. # 9] filed by
Plaintiff, James Hugh Otwell. For reasons stated below, it is
recommended that the motion be DENIED.
matter arises out of a vehicular accident that occurred May
10, 2016 in Morehouse Parish, Louisiana. See
Petition, doc. # 1-1, p. 3, ¶ 2. Hutchison was driving
an 18 wheeler and hauling a wide load mobile home when his
trailer lost a wheel, sending the wheel and/or other debris
into Plaintiff's vehicle. Id.
April 20, 2017, Plaintiffs filed their Petition for Damages
in the 5th Judicial District Court, West Carroll Parish,
Louisiana against Hutchison and his insurer, National Fire
and Marine Insurance Company (“National”), for
damages arising out of the May 10th accident.
See Petition, doc. # 1-1. Plaintiff alleges that he
suffered, and seeks damages for, severe disabling injuries:
past and future mental and physical pain and suffering
including loss of enjoyment of life, pre-impact fear,
post-impact fear, depression and post-traumatic fear, and
physical disability and impairment, and past and future
economic loss including lost earnings, and past and future
medical expenses. His wife also seeks damages for her loss of
consortium. Id. at ¶¶ 3, 6, 9, 10, 11, and
September 14, 2017, Defendants filed a Declinatory Exception
of Improper Venue [doc. # 10-1] in state court. In their
Declinatory Exception, Defendants argued that venue was
improper in West Carroll Parish. Defendants argued that venue
would be proper in Morehouse Parish, where the accident
occurred, or in Tangipahoa Parish, where Hutchison resided.
In support of their argument, Defendants attached
Hutchison's affidavit executed on September 5, 2017(the
“First Affidavit”) [doc. # 10-2]. In the First
Affidavit, Hutchison attests that he resided in Tangipahoa
Parish, Louisiana on April 20, 2017. Affidavit, doc. # 10-2,
April 18, 2018, Defendants removed the case to this Court.
See Notice of Removal, doc. # 1. The sole basis of
subject matter jurisdiction Defendants asserted was diversity
jurisdiction under 28 U.S.C. §1332. Defendants alleged
that the parties are completely diverse, the amount in
controversy exceeds $75, 000.00, Plaintiffs are domiciled in
Louisiana, and National is domiciled in Nebraska.
Id. at pp. 2-3, ¶¶ 5, 6 and 7. Defendants
assert that at the time of the accident, Hutchison resided in
Louisiana, but that, at the time of filing in state court,
Hutchison was a citizen of Mississippi. Id. at p. 3,
¶ 8. Defendants rely upon Hutchison's April 9, 2018,
Affidavit (the “Second Affidavit”), which they
attach as an exhibit. See Affidavit, doc. # 1-2. In
the Second Affidavit, Hutchison attests that he resided in
Independence, Tangipahoa Parish, Louisiana, on the date of
the accident, but that his home there was in foreclosure
“for some time.” Id. at p. 1, ¶ 2.
On March 18, 2017, Hutchison and his wife relocated to a
campground in Vicksburg, Mississippi, where he resided until
he purchased a home in Vicksburg on June 3, 2017.
Id. Hutchison attests that he permanently relocated
to Vicksburg, Mississippi on March 18, 2017 because most of
his work is in Mississippi. Id. at ¶ 3.
Hutchison acknowledges that his statements in the Second
Affidavit conflict with those in the First Affidavit.
Id. at ¶ 2. He identifies the foreclosure of
his home in Independence, Louisiana as the cause of the
16, 2018, Plaintiffs filed the instant motion arguing that
this Court lacks subject matter jurisdiction. See
Motion to Remand, doc. # 9. Plaintiffs assert that Defendants
have not and cannot meet their burden of proving that
Hutchison was domiciled in Mississippi on April 20, 2017.
Id. Plaintiffs attached the First Affidavit as well
as a Declaration of Robert “Jerry” Defatta [doc.
# 10-4] as support for their motion. Plaintiffs hired Defatta
as a private investigator to look into Hutchison's claim
that he became a Mississippi resident in March 2017. Defatta
found that a petition for mortgage foreclosure against
Hutchison's home in Tangipahoa Parish, Louisiana was not
filed until December 2017 and that an eviction notice was not
issued until January 2018. See Declaration, doc. #
10-4, p. 2, ¶ 9. Defatta states that he found no record
of Hutchison obtaining a Mississippi driver's license,
and that his Louisiana driver's license is suspended, but
not canceled. Id. at ¶ 10. Lastly, Defatta
states that he found no record of Hutchison using a
Mississippi address until October 2017, and that Hutchison
continued to use his home address in Tangipahoa Parish,
Louisiana until September 2017. Id. at p. 3, ¶
13, 2018, Defendants filed their opposition to the instant
motion. See Memorandum in Opposition to
Plaintiff's Motion to Remand, doc. # 16. In support of
their opposition, Hutchison executed a third affidavit, dated
June 9, 2018 (the “Third Affidavit”).
See Affidavit, doc. # 16-1, pp. 1-2, ¶¶
2-3. In the Third Affidavit, Hutchison reiterates the time
line set forth in the Second Affidavit as well as his
assertion that he relocated permanently to Mississippi on
March 18, 2017. Id. Hutchison provides receipts that
support his assertion that he resided at a campground in
Vicksburg, Mississippi from March 18, 2017, through June 8,
2017. Id. at pp.. 4-5, Exhibit A. Hutchison provides
a lease-purchase agreement dated June 3, 2017, wherein
Hutchison and his wife agreed to the lease/purchase of home
in Vicksburg, Mississippi. Id. at pp. 6-10, Exhibit
B. Lastly, Hutchison attaches a default notice, dated
February 14, 2017, wherein Nationstar Mortgage informs
Hutchison that the mortgage securing his home in
Independence, Louisiana, is in default and that failure to
make all payments due by March 21, 2017, will result in the
initiation of foreclosure proceedings. Id. at pp.
11-13, Exhibit C.
defendant may remove an action from state court to federal
court, provided the action is one in which the federal court
may exercise original jurisdiction. Manguno v. Prudential
Property and Cas. Ins. Co., 276 F.3d 720, 723
(5th Cir. 2002) (citing 28 U.S.C. § 1441(a)).
The removing defendant bears the burden of establishing
federal subject matter jurisdiction and ensuring compliance
with the procedural requirements of removal. Id.
Because federal courts are courts of limited jurisdiction, a
suit is presumed to lie outside this limited jurisdiction
unless and until the party invoking federal jurisdiction
establishes to the contrary. Howery v. Allstate Ins.
Co., 243 F.3d 912, 916 (5th Cir. 2001) (citation
omitted). The removal statutes are strictly construed in
favor of remand. Manguno, supra.
case, Defendants invoked the Court's subject matter
jurisdiction via diversity, which requires complete diversity
of citizenship between plaintiffs and defendants, and an
amount in controversy greater than $75, 000. 28 U.S.C. §
1332(a). Plaintiffs do not contest that the amount in
controversy exceeds $75, 000. Although the parties cannot
confer federal subject matter jurisdiction via consent,
record establishes and that the amount in controversy
exceeded $75, 000 at the time of removal.
individual parties, the courts equate domicile with
citizenship. Mas v. Perry, 489 F.2d 1396 (5th Cir.
1974). "Domicile" is not synonymous with
"residence"; one can reside at one place but be
domiciled in another, and one can have more than one
residence, but only one domicile. Mississippi Band of
Choctaw Indians v. Holyfield, 490 U.S. 30, 48, 109 S.Ct.
1597, 1608 (1989). “A change of domicile may be
effected only by a combination of two elements: (a) taking up
residence in a different domicile with (b) the intention to
remain there.” Mas, 489 F.2d at 1399. Evidence
of intent to establish domicile may be found in “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 v. Prot, 85 F.3d
244, 251 (5th Cir. 1996). “In cases removed from state
court, diversity of citizenship must exist both at the time
of filing in state court and at the time of removal to
federal court.” Coury, 85 F.3d at 249.
there is no dispute that, at the time of the accident,
Hutchison was a citizen of Louisiana, residing in Tangipahoa
Parish. There is also no dispute that, at the time of removal
through the present, Hutchison was/is a citizen of
Mississippi. At issue is Hutchison's citizenship ...