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WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Sarah Shimomura, 

Plaintiff, 

v. 

American Medical Response Incorporated, 

et al., 

Defendants. 

No. CV-18-00117-TUC-RM

ORDER 

 Pending before the Court is Plaintiff Sarah Shimomura’s Motion to Remand. 

(Doc. 16.) The Motion is fully briefed and is suitable for determination without oral 

argument. (Docs. 23, 26.) For the following reasons, the Motion will be granted. 

I. Background 

 On February 7, 2018, Plaintiff filed the Complaint in Pima County Superior Court. 

(Doc. 1-3 at 10–13.) Plaintiff alleges that, on August 28, 2017, she lawfully entered a 

marked crosswalk with her bicycle. (Id. at 12, ¶¶ 13, 15.) Defendant Juan Briones, an 

employee of Defendant American Medical Response, Inc. (“AMRI”) who was operating 

a vehicle owned by Defendant Southwest Ambulance of Tucson, Inc., allegedly entered 

the crosswalk unlawfully and struck Plaintiff and her bicycle. (Id. ¶¶ 14, 15, 16.) 

Plaintiff allegedly sustained serious and permanent injuries, which have caused her great 

physical and mental pain. (Id. at 12–13, ¶ 19.) She has lost income and athletic 

eligibility and has incurred medical and other expenses in an undetermined amount. (Id.

at 13, ¶ 20.) She alleges a claim of negligence against all Defendants. (See id. at 12–13.) 
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 On March 1, 2018, Defendant AMRI filed a Notice of Removal Pursuant to 28 

U.S.C. §§ 1332(a) and 1446(a). (Doc. 1.) Defendant AMRI asserts that this Court has 

diversity jurisdiction because there is complete diversity of citizenship between Plaintiff 

and Defendants, and the amount in controversy exceeds $75,000, exclusive of interest 

and costs. (Id. ¶ 7.) As to Plaintiff’s citizenship, Defendant AMRI alleges that Plaintiff 

is domiciled in California, although she resides in Tucson, Arizona as a student. (Id. ¶ 8.) 

The Defendants are domiciled either in Arizona, Delaware, or Colorado. (Id. ¶¶ 10, 11.) 

As to the amount-in-controversy requirement, Defendant AMRI asserts that it is apparent 

from the face of the Complaint, as well as from updates concerning Plaintiff’s medical 

status, that the amount in controversy exceeds $75,000. (Id. ¶¶ 14, 15, 16.) 

 Plaintiff filed her Motion to Remand on March 28, 2018. (Doc. 16.) She argues 

that Defendant AMRI’s removal was procedurally improper because unanimity of all 

Defendants was not established prior to removal. She also argues that there is not 

complete diversity of citizenship because Plaintiff is domiciled in Arizona. Defendants 

argue in response that unanimity was not required and that there is evidence that Plaintiff 

is domiciled in California and resides in Arizona merely to attend school. 

II. Standard of Review 

“A defendant generally may remove any action filed in state court if a federal 

district court would have had original jurisdiction.” Gonzales v. CarMax Auto 

Superstores, LLC, 840 F.3d 644, 648 (9th Cir. 2016) (citing 28 U.S.C. § 1441(a)). 

Federal courts have original jurisdiction in cases where the amount in controversy 

exceeds $75,000 and the action is between citizens of different states. 28 U.S.C. § 

1332(a). There is a “strong presumption” against removal, and “[f]ederal jurisdiction 

must be rejected if there is any doubt as to the right of removal in the first instance.” 

Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citations omitted). It is the 

defendant’s burden to establish proper removal by a preponderance of the evidence. 

Geographic Expeditions, Inc. v. Estate of Lhotka ex rel. Lhotka, 599 F.3d 1102, 1106–07 

(9th Cir. 2010). 
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III. Discussion 

 A. Procedural Deficiencies 

 Plaintiff argues that the Notice of Removal is procedurally defective because 

Defendant AMRI did not obtain consent from all Defendants before filing it. The only 

defendants who must join a petition for removal are those who have been properly served 

at the time of removal. Destfino v. Reiswig, 630 F.3d 952, 956 (9th Cir. 2011) (quoting 

Emrich v. Touche Ross & Co., 846 F.2d 1190, 1193 n.1 (9th Cir. 1988)). The state-court 

record shows that only Defendant AMRI had been served at the time of removal. (Doc. 

1-3 at 15.) Therefore, the Notice of Removal is not procedurally defective because no 

other Defendants’ consent was necessary.

B. Diversity of Citizenship1

 A person’s state citizenship is determined by his or her domicile. Kanter v. 

Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001). “A person’s domicile is her 

permanent home, where she resides with the intention to remain or to which she intends 

to return.” Id. Relevant factors in determining a person’s domicile include: “current 

residence, voting registration and voting practices, location of personal and real property, 

location of brokerage and bank accounts, location of spouse and family, membership in 

unions and other organizations, place of employment or business, driver’s license and 

automobile registration, and payment of taxes.” Lew v. Moss, 797 F.2d 747, 750 (9th Cir. 

1986) (citation omitted). No single factor is dispositive. Id. “It is a longstanding 

principle that ‘[t]he place where a person lives is taken to be his domicile until facts 

adduced establish the contrary.’” NewGen, LLC v. Safe Cig, LLC, 840 F.3d 606, 614, 

(9th Cir. 2016) (quoting Anderson v. Watts, 138 U.S. 694, 706 (1891)).2

 1

 There is no dispute that the amount-in-controversy requirement for jurisdiction under 28 U.S.C. § 1332 is satisfied. 2

 The parties cite Mondragon v. Capital One Auto Fin., 736 F.3d 880, 886 

(9th Cir. 2013), for the proposition that the Ninth Circuit has not adopted the rebuttable 

presumption that residence is prima facie evidence of domicile. However, the 

Mondragon court merely noted in passing that it is not clear whether this circuit has 

adopted the presumption, and it expressly declined to address that issue. Id. More recent 

authority indicates it is appropriate to apply a rebuttable presumption. See NewGen, LLC, 840 F.3d at 614. 
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 Plaintiff contends that Defendants are unable to satisfy their burden because the 

following factors show that she is domiciled in Arizona: she attends school full-time in 

Tucson at the University of Arizona and is a member of the swimming and diving team; 

she pays rent on a year-long lease; she keeps her personal property in Tucson; she insures 

her vehicle in Arizona; and she is a volunteer speaker in the Tucson community. 

Defendants argue that the foregoing factors do not establish domicile because they are 

typical of all students attending college away from home. They argue the following 

factors show that Plaintiff is domiciled in California: Plaintiff possesses a California 

driver’s license, which was issued on December 27, 2017, and identifies her parents’ 

California address as her address; Plaintiff’s passport identifies her parents’ address; 

Plaintiff is not registered to vote in Arizona; Plaintiff was briefly employed in California 

during school breaks in 2016 and 2017; Plaintiff has filed Federal and California state 

income tax returns identifying her parents’ address, and she has never filed an Arizona 

state income tax return; Plaintiffs’ parents claimed her as a dependent on their income 

taxes; Plaintiff owns no real property or business interests in Arizona; Plaintiff’s bank 

accounts were established in California using her parents’ address; and Plaintiff’s parents 

pay her living expenses. 

 Although it is a close question, the Court finds that Defendants have not 

established by a preponderance of evidence that diversity jurisdiction exists. Defendants 

rely on the absence of two Lew factors—i.e., Plaintiff is not registered to vote in Arizona 

and owns no real property in Arizona—as evidence that Plaintiff is domiciled in 

California. However, Plaintiff is not registered to vote in California and owns no real 

property in California either. Those factors do not weigh one way or the other. 

Plaintiff’s bank accounts are associated with a banking institution that is located 

exclusively in California. However, the Court agrees with Plaintiff that this factor holds 

very little, if any, weight given the increasing prevalence of online banking. Nor is the 

Court particularly persuaded by Plaintiff’s limited work experience in California, or by 

the filing of tax returns for the insignificant wages she made as a result. Plaintiff worked 
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less than full-time for very brief periods; this does not persuasively show an intention to 

return to and remain in California. 

Plaintiff’s recent renewal of her California driver’s license is a persuasive factor 

indicating an intention to return to and remain in California. The presence of her family 

in California also weighs in favor of a California domicile, although to a lesser extent. 

Factors weighing in favor of an Arizona domicile include Plaintiff’s residency, the 

location of Plaintiff’s personal property in Arizona, Plaintiff’s Arizona vehicle insurance, 

and Plaintiff’s volunteer work in the Tucson community. Cognizant that it is Defendants’ 

burden to establish proper removal, the Court finds that, on balance, there is doubt as to 

whether the parties are really diverse. “[A]ny doubt about the right of removal requires 

resolution in favor of remand.” Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 

1244 (9th Cir. 2009) (citing Gaus, 980 F.2d at 566). 

Accordingly, 

IT IS ORDERED: 

1. Plaintiff’s Motion to Remand (Doc. 16) is granted. 

2. The above-numbered action is remanded to the Pima County Superior 

Court (Cause No. C20180639). The Clerk of Court is directed to mail a certified copy of 

this Order to the clerk of the Pima County Superior Court. 

3. The Clerk of Court is further directed to close this case. 

 Dated this 2nd day of May, 2018.