United States District Court, D. Nevada
J. DAWSON UNITED STATES DISTRICT JUDGE
before the Court is Plaintiff's Motion to Remand Back to
State Court (#5). Defendants filed a response (#11) to which
Plaintiff replied (#14).
about May 2, 2016, Plaintiff alleges Defendant Jessica
Faussett (“Jessica”) failed to use due care on
the road and caused an accident. Plaintiff was involved in
the accident and received medical treatment for the injuries
she sustained, and on April 2, 2018, filed a negligence claim
against Jessica. On April 18, 2018, Plaintiff amended her
complaint to include Jessica's parents David Faussett
(“David”) and Patricia Faussett
(“Patricia”) as defendants. Plaintiff claims that
because David and Patricia are co-owners of the car, they are
jointly and severally liable for the injuries Plaintiff
sustained in the accident.
claim Jessica is the sole owner of the 2007 Chevrolet
Silverado 1500 involved in the accident, and that Plaintiff
added David and Patricia to eliminate diversity of parties,
thus preventing Defendants from removing to federal court.
Based on these allegations, Defendants petitioned to remove
this case and to dismiss David and Patricia from the action.
requests that the case be remanded to state court, alleging
all defendants are residents of Nevada. However, Defendants
claim Jessica has moved to New Zealand, and as such is no
longer a resident of Nevada. The pleadings state Jessica does
not own a residence or vehicle in the state, but does have a
valid Nevada driver's license. Defendants David and
Patricia signed an affidavit stating their daughter moved to
New Zealand, but did not include details as to why she moved
or how long she intends to remain.
jurisdiction based on diversity is determined at the time the
complaint is filed and the removal is effected, not at the
time of the incident that gives rise to the litigation.
See Strotek Corp. v. Air Transp. Ass'n of Am.,
300 F.3d 1129, 1131-32 (9th Cir. 2002). Diversity must exist
when the action is removed. See Newcombe v. Adolf Coors
Co., 157 F.3d 686, 690 (9th Cir. 1998). The defendant in
a removal action has the burden of proving all jurisdictional
facts and establishing that removal is proper. See,
e.g., Gaus v. Miles, Inc., 980 F.2d 564,
566 (9th Cir. 1992); Industrial Tectonics, 912 F.2d
at 1092; Abada v. Charles Schwab & Co., 68
F.Supp.2d 1160, 1162 (S.D. Cal. 1999). Federal courts
strictly construe the removal statute against removal
jurisdiction. Gaus, 980 F.2d at 566.
is based on domicile, and “[r]esidence in fact, coupled
with the purpose to make the place of residence one's
home, are the essential elements of domicile.”
State of Texas v. State of Florida, 306 U.S. 398,
424 (1939) (citing Mitchell v. United States, 88
U.S. 350, 352 (1874)). To determine if a defendant has
intended to establish a domicile, the court looks “to
such circumstances as [defendant's] declarations,
exercise of political rights, payment of personal taxes,
house of residence, and place of business.” Krasnov
v. Dinan, 465 F.2d 1298, 1301 (3rd Cir. 1972) (citing
Wright Federal Courts § 26, at 87 (2d ed. 1970);
Mitchell, 88 U.S. at 353). The removal statute is
strictly interpreted, and if there are any doubts as to the
removability of an issue, they are typically resolved against
the right of removal and in favor of remanding the case to
state court. See Gaus, 980 F.2d at 564;
Abada, 68 F.Supp.2d at 1162.
failed to meet their burden of proving all necessary
jurisdictional facts to establish that removal was proper.
“A domicile once acquired is presumed to continue until
it is shown to have been changed, ” and while Jessica
currently lives in New Zealand, there has been no showing
that she intends to remain. Mitchell 88 U.S. at 353.
She maintains a valid Nevada driver's license, and
Defendants offer no proof of her immigration or visa status
in New Zealand, her payment of personal taxes, or her
political participation. Jessica's previously acquired
domicile is legally valid until she shows she has established
a new one, and Defendants did not provide sufficient evidence
to show that she has established a new domicile in New
Zealand. Thus, for purposes of this action she is domiciled
in Nevada and diversity jurisdiction does not exist.
event of a remand, Plaintiff requested attorney fees under 28
U.S.C. § 1447(c) which states “[a]n order
remanding the case may require payment of just costs and any
actual expenses, including attorney fees, incurred as a
result of the removal.” “Absent unusual
circumstances, courts may award attorney's fees under
§ 1447(c) only where the removing party lacked an
objectively reasonable basis for seeking removal.”
Martin v. Franklin Capital Corp., 546 U.S. 132, 141
(2005). Defendants' motion for removal does not contain
unusual circumstances and is objectively reasonable as
Jessica's Nevada residency was uncertain. Thus,
Plaintiffs request for attorney fees associated with
Defendants' petition for removal is denied.
IT IS HEREBY ORDERED that Plaintiffs Motion to Remand Back to
State Court (#5) is GRANTED. ...