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Carter v. Wutoh

United States District Court, D. Maryland, Southern Division

May 17, 2019

ROBERT LOUIS CARTER, JR. Plaintiff,
v.
KWAME SEKOU MICHAEL S. WUTOH, et al. Defendants.

          MEMORANDUM OPINION AND ORDER

          Paul W. Grimm United States District Judge.

         Kwame Sekou Michael S. Wutoh was driving a vehicle that Jong Sung Ham had rented to him through the company Turo, Inc. (“Turo”), on February 20, 2017, in Prince George's County, Maryland, when he collided with the vehicle that Robert Louis Carter, Jr. was driving, injuring Carter. Carter filed suit in the Circuit Court for Prince George's County against Wutoh, Ham, and Erie Insurance Company (Carter's insurance policy provider), alleging all state law claims. Am. Compl., ECF No. 1-5. He then filed an Amended Complaint, adding Turo as a Defendant and bringing three state-law claims against it. See Redlined Am. Compl., ECF No. 1-6. Turo removed this case to this Court on November 8, 2018, based on diversity of citizenship. ECF Nos. 1, 1-1.

         Carter sought to remand the case to state court, arguing that, even though he listed a California address for Wutoh, he was unable to serve Wutoh in California and learned that he is a Maryland citizen, such that there is not complete diversity of citizenship, as is required for removal to federal court based on diversity. Pl.'s Mot., ECF No. 20; Pl.'s Mem. 1-2, 10, ECF No. 20-1.[1]The parties engaged in targeted discovery regarding Wutoh's domicile and briefed Carter's Motion to Remand. Pl.'s Mem.; Pl.'s Supp., ECF No. 21; Def.'s Mem., ECF No. 22-1. Carter did not file a reply, but the time for doing so has passed. See Loc. R. 105.6. Because Turo has failed to establish that there was complete diversity at the time of removal, I will grant Carter's Motion and remand the case to the Circuit Court for Prince George's County.

         Diversity Jurisdiction

         Federal district courts “have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs, and is between- (1) citizens of different States . . . .” 28 U.S.C. § 1332(a). The plaintiff may file suit in federal court, and the court's diversity jurisdiction is assessed based on “the state of things at the time . . . the action [is] brought.” Medish v. Johns Hopkins Health Sys. Corp., 272 F.Supp.3d 719, 723 (D. Md. 2017) (quoting Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 570 (2004) (quoting Mollan v. Torrance, 9 Wheat. 537, 539, 22 U.S. 537 (1824))); see also Dollinger v. Caradonna, No. JFM-10-7200, 2010 WL 4183401, at *2 (D. Md. Oct. 25, 2010) (“In determining whether diversity of citizenship exists, it is the date on which the complaint was filed that controls.”). When, instead, a plaintiff files an action in state court against a defendant or defendants and the parties are diverse, the action “may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” 28 U.S.C. § 1441(a). In this situation, diversity of citizenship must exist when the defendant removes the case to federal court. See 28 U.S.C. § 1446(b)(3); Pittman v. Quest Diagnostics, Inc., No. ELH-15-3093, 2016 WL 540673, at *4 (D. Md. Feb. 11, 2016) (noting that a case that could not be removed based on diversity later could “become removable” if non-diverse parties were dismissed); 14C Wright & Miller, Fed. Prac. & Proc. § 3731 (“[A] change in the parties to the state court action through the plaintiff's voluntary dismissal of those defendants whose presence destroyed complete diversity of citizenship may make a previously unremovable action removable.”).

         It is the party that invokes this Court's jurisdiction-here, Turo-that “bears the burden of proof, by a preponderance of the evidence, to show the parties' citizenship to be diverse.” Zoroastrian Ctr. & Darb-E-Mehr of Metro. Wash., D.C. v, Rustam Guiv Found. of N.Y., 822 F.3d 739, 748 (4th Cir. 2016). When the moving party argues that “the jurisdictional allegations . . . were not true, ” the Court may “go beyond the allegations” and “consider evidence by affidavit, depositions or live testimony . . . .” Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982); see Championship Tournaments, LLC v. U.S. Youth Soccer Ass'n, Inc., No. ELH-18-2580, 2019 WL 528174, at *2 (D. Md. Feb. 8, 2019) (noting that a motion to remand based on lack of diversity jurisdiction “is akin to a motion to dismiss for lack of subject matter jurisdiction governed by [Rule] 12(b)(1)” (quoting Garner v. Supervalu, Inc., No. DKC-08-895, 2008 WL 11416969, at *1 (D. Md. June 4, 2008))). If, the evidence before the Court demonstrates that complete diversity does not exist in a case removed to federal court on the basis of diversity of citizenship, it must be remanded for lack of subject matter jurisdiction. Championship Tournaments, 2019 WL 528174, at *2.

         In this case, the only dispute concerns Defendant Wutoh's citizenship on November 8, 2018, when Turo removed the case to this Court.[2] See Notice of Removal 2; Pl.'s Mem. 9-10; Def.'s Mem. 4. Defendant Turo insists that Wutoh was a citizen of California at the relevant time. Def.'s Mem. 4. Carter contends that Wutoh was a citizen of Maryland. Pl's Mem. 8.

         “[F]or purposes of diversity jurisdiction, an individual is a citizen of the state where the person is domiciled . . . .” See Berrios v. Keefe Commissary Network, LLC, No. TDC-17-0826, 2018 WL 6462840, at *2 (D. Md. Dec. 10, 2018) (citing Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989)). Domicile is

the place with which an individual has a settled connection for legal purposes and the place where a person has his true, fixed, permanent home, habitation and principal establishment, without any present intention of removing therefrom, and to which place he has, whenever he is absent, the intention of returning. The controlling factor in determining a person's domicile is his intent. One's domicile, generally, is that place where he intends to be.

Oglesby v. Williams, 812 A.2d 1061, 1068 (Md. 2002) (quoting Roberts v. Lakin, 665 A.2d 1024, 1027 (Md. 1995)). Thus, “[f]or adults, domicile is established by physical presence in a place in connection with a certain state of mind concerning one's intent to remain there.” Mississippi v. Holyfield, 490 U.S. 30, 48 (1989); see also Berrios, 2018 WL 6462840, at *2 (noting that domicile “requires physical presence coupled with an intent to make the state a home”). Notably,

[a] party's own declarations concerning the identity of his domicile, particularly with regard to an intent to retain or establish one, as is true of any self-serving statement, are subject to judicial skepticism. As many federal courts have made clear, they are accorded little weight by the district judge when they are in conflict with the facts or a party's actual conduct.

Dollinger, 2010 WL 4183401, at *3 (quoting 13E Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. § 3612 (3d ed. 2004)). Thus, “[t]he determination of [a party's] intent . . . is not dependent upon what he says at a particular time, since his intent may be more satisfactorily shown by what is done than by what is said.” Oglesby, 812 A.2d at 1068 (quoting Roberts, 665 A.2d at 1027).

         The starting point for determining domicile is “[w]here a person lives and votes, ” but when “these factors are not so clear” or “special circumstances” suggest that they are not dispositive, then “the Court will look to and weigh a number of other factors in deciding a person's domicile.” Id. at 1068-69 (quoting Roberts, 665 A.2d at 1027). Some of the other facts the Court considers are

the paying of taxes and statements on tax returns; the ownership of property; where the person's children attend school; the address at which one receives mail; statements as to residency contained in contracts or other documents; statements on licenses or governmental documents; where furniture and other personal belongings are kept; which jurisdiction's banks are utilized; membership in professional, fraternal, religious or social organizations; where one's regular physicians and dentists ...

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