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 Because this case is remanded, Plaintiff’s Motion to Strike (Doc. 7) is deemed MOOT.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

RYAN PRICE-WILLIAMS, :

Plaintiff, :

vs. : CA 09-0693-C

ADMIRAL INSURANCE COMPANY, :

et. al.,

Defendants. :

MEMORANDUM OPINION AND ORDER

This cause is before the undersigned on the removal petition (Doc.

1), Plaintiff’s Motion to Remand (Doc. 4), Defendant Admiral Insurance

Company’s Response in Opposition (Doc. 6) to the remand motion, and

Plaintiff’s Reply (Doc. 7) thereto. Upon consideration of the foregoing

pleadings and with the benefit of a hearing before the undersigned on

December 3, 2009, the Court hereby GRANTS Plaintiff’s motion to

remand and REMANDS this case to the Circuit Court of Mobile County,

Alabama from whence it came.1

I. Background.

On October 6, 2009, Plaintiff filed a complaint in the Circuit Court

of Mobile County, Alabama, asserting a claim under Code of Alabama §

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 Ala. Code § 27-23-2 states:

Upon the recovery of a final judgment against any person, firm, or

corporation by any person, including administrators or executors,

for loss or damage on account of bodily injury, or death or for loss

or damage to property, if the defendant in such action was insured

against the loss or damage at the time when the right of action

arose, the judgment creditor shall be entitled to have the insurance

money provided for in the contract of insurance between the

insurer and the defendant applied to the satisfaction of the

judgment, and if the judgment is not satisfied within 30 days after

the date when it is entered, the judgment creditor may proceed

against the defendant and the insurer to reach and apply the

insurance money to the satisfaction of the judgment.

Id.

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27-23-2 (1975).2 That complaint averred that Defendant Gabriel K. Dean is

a resident of Alabama, that Defendant Charles Brandon Baber is a resident

of Mississippi, and that Defendant Admiral Insurance Company is a foreign

corporation doing business in Alabama. (Doc. 1, p. 9.)

In Defendant’s removal petition filed October 22, 2009, however,

Admiral Insurance Company (“AIC”) contends that removal is proper based

on diversity of citizenship, namely that Defendant Gabriel K. Dean is

actually a resident of Montana, not Alabama, and therefore the parties are

diverse in their citizenship. (Doc. 1, p. 4.)

Gabriel K. Dean is the final named [d]efendant. Plaintiff’s

Complaint lists Dean as a resident of Alabama; however,

upon research of available public records, including but not

limited to real property records and motor vehicle

registrations, counsel for Defendant has found [that] Dean is a

resident of Montana. A teleconference with Dean’s

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stepmother, Cheryl Dean, who resides at the Wetumpka

address listed by Plaintiff in his summons, confirmed Dean is

a resident of Montana and has not lived in Alabama for three

to four years. Dean has not been served in this matter.

(Id.)

Contrarily, in Plaintiff’s Motion to Remand (Doc. 4), it is noted that

“pre-suit investigation conducted by Plaintiff indicated that Defendant

Gabriel Dean is a legal resident of Wetumpka, Alabama.” (Doc. 4, ¶ 3.) 

Defendant, in turn, attached an affidavit from Defendant Dean’s stepmother

to its response in opposition to Plaintiff’s remand motion which attests that

Defendant Dean has not resided in Alabama for at least eight years, and that

he indeed resides in Montana. (Doc. 6, p. 5-6.) Finally, on December 3,

2009, Plaintiff filed a reply (Doc. 7) to AIC’s response to their remand

motion in which they moved to strike Ms. Dean’s “conclusory” testimony,

which they label as “hearsay evidence.” (Doc. 7, p. 1.) Plaintiff mentions a

telephone conversation with Ms. Dean during which Ms. Dean refused to

state where her stepson lived or to provide Plaintiff’s counsel with Gabriel

Dean’s phone number. (Id. at 2.) Although Ms. Dean did mention that her

stepson was working in Montana, she at no time stated that he was a

resident of Montana. (Id.) As a result of this conversation, Plaintiff’s

counsel has formed the opinion that Ms. Dean has little to no direct

knowledge of her stepson’s whereabouts and therefore that her opinion

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“should not be considered by this Court relative to Plaintiff’s Motion for

Remand.” (Id.) Plaintiff concludes by correctly noting that residency is not

synonymous with citizenship in the removal context, and that the Court is

constrained to looking at the jurisdictional facts as they are presented at the

time of removal, making Ms. Dean’s affidavit of marginal use at this stage

of the proceedings. (Id. at 2-3.)

II. Discussion.

“Any civil case filed in state court may be removed by the defendant

to federal court if the case could have been brought originally in federal

court.” Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1356 (11th Cir.

1996) (citing 28 U.S.C. § 1441(a)), abrogated on other grounds by Cohen

v. Office Depot, Inc., 204 F.3d 1069 (11th Cir. 2000). Federal courts may

exercise diversity jurisdiction over all civil actions where the amount in

controversy exceeds $75,000, exclusive of interest and costs, and the action

is between citizens of different states. 28 U.S.C. § 1332(a)(1). However,

“[b]ecause removal jurisdiction raises significant federalism concerns,

federal courts are directed to construe removal statutes strictly. . . . Indeed,

all doubts about jurisdiction should be resolved in favor of remand to state

court.” University of South Alabama v. American Tobacco Co., 168 F.3d

405, 411 (11th Cir. 1999).

“[T]he party invoking the court’s jurisdiction bears the burden of

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proving, by a preponderance of the evidence, facts supporting the existence

of federal jurisdiction.” McCormick v. Aderholt, 293 F.3d 1254, 1257 (11th

Cir. 2002); see also Triggs v. John Crump Toyota, Inc., 154 F.3d 1284,

1287 n.4 (11th Cir. 1998) (citation omitted) (“[T]he removing party bears

the burden of demonstrating federal jurisdiction.”); Tapscott, 77 F.3d at

1356 (“A removing defendant has the burden of proving the existence of

federal jurisdiction.”). Therefore, the burden in this case is on AIC to

establish complete diversity, or that each defendant is diverse from the

plaintiff, Triggs, 154 F.3d at 1287 (citation omitted), and also to establish

by a preponderance of the evidence that the amount in controversy more

likely than not exceeds the $75,000 jurisdictional requirement, Tapscott, 77

F.3d at 1357 (“[W]e hold where a plaintiff has made an unspecified demand

for damages in state court, a removing defendant must prove by a

preponderance of the evidence that the amount in controversy more likely

than not exceeds the $50,000 jurisdictional requirement.”).

Because there is no question that the $75,000 jurisdictional

requirement has been satisfied– the complaint clearly requests over

$1,250,000 from Defendants– the only issue is whether the citizenship of

each plaintiff is diverse from the citizenship of each defendant. (Doc. 1, p.

11-12.) In this regard, “‘citizenship’ means ‘domicile.’” Audi Performance

& Racing, LLC v. Kasberger, 273 F.Supp.2d 1220, 1226 (M.D. Ala. 2003);

Case 1:09-cv-00693-C Document 10 Filed 01/28/10 Page 5 of 11
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law, a person residing in a particular state is not necessarily domiciled there, and therefore is not

necessarily a citizen of that state. That said, while the two concepts are analytically distinct, a

party’s place of residence is prima facie evidence of his domicile.” Slate v. Shell Oil Co., 444

F.Supp.2d 1210, 1215 n.9 (S.D.Ala. 2006) (citations omitted).

4 Decisions of the former Fifth Circuit handed down prior to September 30, 1981,

are binding precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209

(11th Cir. 1981) (en banc).

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see also McCormick, supra, 293 F.3d at 1257 (“Citizenship is equivalent to

‘domicile’ for purposes of diversity jurisdiction.”); Mas v. Perry, 489 F.2d

1396, 1399 (5th Cir.) (“For diversity purposes, citizenship means domicile;

mere residence in the State is not sufficient.”),3 cert. denied, 419 U.S. 842,

95 S.Ct. 74, 42 L.Ed.2d 70 (1974), and, therefore, “the burden on the

question of [Defendant Dean’s] domicile rests with defendant[] because it is

[AIC] who seek[s] the federal forum.” Slate, 444 F.Supp.2d at 1216

(citations omitted); see also Mas, 489 F.2d at 1399 (“The burden of

pleading the diverse citizenship is upon the party invoking federal

jurisdiction . . . and if the diversity jurisdiction is properly challenged, that

party also bears the burden of proof.”).4

It should also be noted here that AIC’s burden in proving that

Defendant Dean is domiciled in Montana is substantially increased by the

legal presumption that he is an Alabamian. In Kasberger, the Court raises

the concept of legal presumptions of domicile. “In determining domicile, a

court should consider both positive evidence and presumptions,” explaining

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 It should be noted that in her sworn affidavit, Gabriel Dean’s stepmother admitted that

Defendant Dean indeed resided in Wetumpka, Alabama at some point roughly four to eight years

ago, the discrepancy owing itself to a handwritten correction in the affidavit. (Doc. 6, p. 5.)

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that “once an individual has established a domicile, he remains a citizen

there until he satisfies the mental and physical requirements of domicile in a

new state.” Kasberger, 273 F.Supp.2d at 1226 (internal citations and

quotations omitted). See also Slate v. Shell Oil Co., 444 F.Supp.2d 1210,

1216 (S.D.Ala. 2006) (same). 

The effect of this presumption is to put a heavier burden on a

party who is trying to show a change of domicile than is

placed on one who is trying to show the retention of an

existing or former one . . . Once a person establishes a

domicile, it continues until the person establishes a new

domicile.

Kasberger, 273 F.Supp.2d at 1226 (citing Brown v. TranSouth Finan.

Corp., 897 F.Supp. 1398, 1402 (M.D.Ala. 1995)) (emphasis in original). 

Defendant Dean’s established address in Wetumpka, Alabama thus adds

significant difficulty to AIC’s quest to prove that complete diversity indeed

exists between the parties, especially considering the paucity of evidence on

the record, where we have only conclusory statements from Defendant

Dean’s stepmother that he is a resident of Montana.5

 As will be shown,

AIC’s attempt falls far short of the mark regarding Dean’s citizenship.

Kasberger continues by explaining the process of determining

whether a domicile has been established:

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Courts examine numerous specific objective facts to

determine whether a domicile has been established; these

facts include: location of employment; home ownership and

ownership of other real property; location of one’s household

furnishings; registration and title to one’s automobiles’

driver’s licensing; voter registration; payment for utilities;

banking; acquiring a telephone number and listing it;

receiving mail; and establishing membership in local

professional, civic, religious, or social organizations.

Kasberger, 273 F.Supp.2d at 1226 (citing Rayfield v. Nat’l Auction Group,

Inc., 878 F.Supp. 203, 206 (M.D.Ala. 1995)). The use of this listing of the

components of citizenship, also known as the Rayfield factors, is fairly

ubiquitous. Indeed, “[a] person’s domicile is the place of ‘his true, fixed,

and permanent home and principal establishment, and to which he has the

intention of returning whenever he is absent therefrom[.]’” Mas, 489 F.2d at

1399 (citations omitted). Or, as this Court has already stated:

Determination of a party’s domicile requires a “totality of the

circumstances” approach weighing a constellation of

objective facts, no single one of which is entitled to

controlling weight. Among the numerous indicia considered

are the state(s) where civil and political rights are exercised,

where taxes are paid, where real and personal property are

located, where driver’s and other licenses are obtained, where

mail is received, where telephone numbers are maintained and

listed, where bank accounts are maintained, where places of

business or employment are located, and where memberships

in local professional, civil, religious or social organizations

are established. In addition to these objective criteria, the

domicile inquiry also considers a party’s subjective

statements of intent, although such representations are not

dispositive.

Slate, 444 F.Supp.2d at 1215 (internal citations and footnotes omitted). See

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also Stine v. Moore, 213 F.2d 446, 448 (5th Cir. 1954) (relating that “the

actual fact of residence and a real intention of remaining there, as disclosed

by [a person’s] entire course of conduct, are the controlling factors” in

determining a litigant’s domicile).

As mentioned earlier, Defendant’s removal petition posits that

“research of available public records” confirmed by Dean’s stepmother

indicates that he “is a resident of Montana.” (Doc. 1, p. 4.) It bears

repeating, however, that “[r]esidence alone is not the equivalent of

citizenship, although the place of residence is prima facie the domicile; and

citizenship is not necessarily lost by protected absence from home, where

the intention to return remains.” Stine, 213 F.2d at 448. See also

McAllister v. Henderson, 698 F.Supp. 865, 870 (N.D. Ala. 1988) (internal

citations omitted) (noting that “[d]iversity of citizenship, not of residence, is

required under 28 U.S.C. § 1332” and that “[a]n allegation of residence is

insufficient to establish diversity jurisdiction.”); Mitchell v. Mackey, 915

F.Supp. 388, 391 (M.D. Ga. 1996) (internal citations omitted) (stating that

while “‘[c]itizenship and ‘domicile’ are synonyms for purposes of diversity

jurisdiction . . . [r]esidence, however, is not the equivalent of either

citizenship or domicile.”). Defendant AIC’s bare contention that Defendant

Dean is a “resident” of Montana, therefore, does not satisfy its

preponderance of the evidence burden that complete diversity exists in the

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present case. Looking solely at the removing documents (the petition for

removal, with attachments, including the complaint), this Court simply

cannot find that ACI has established by a preponderance of the evidence

that Defendant Dean was domiciled in Montana in October of 2009, when

this case was removed from the Circuit Court of Mobile County, Alabama.

A consideration of the other evidence supplied to the Court by AIC

fails to yield a different result. This is because the extraneous evidence

presented by AIC– an affidavit from Defendant Dean’s stepmother attached

to AIC’s response to Plaintiff’s remand motion– directs its focus, much like

AIC’s removal petition, on facts pertaining to Dean’s residence, not

citizenship or domicile. The affidavit clearly states that “Gabriel K. Dean

does not currently reside [in Alabama],” that “Gabriel K. Dean has not

resided [in Alabama] for at least eight years,” and that Dean “currently

resides in Montana.” (Doc. 6, p. 5-6.) Just as importantly, neither the

affidavit nor anything in the removal petition itself comes close to

satisfying any of the aforementioned Rayfield factors. From the “totality of

the circumstances” standpoint prescribed by Slate, then, the information

adduced satisfies neither AIC’s standard burden of proving by a

preponderance of the evidence that Defendant Dean was domiciled in

Montana in October of 2009 nor the heightened burden they face when

attempting to change Dean’s established Alabaman citizenship. Remand is

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clearly required in this action.

III. Conclusion.

Based upon the foregoing, Plaintiff’s Motion to Remand (Doc. 4) is

GRANTED. Accordingly, this case is REMANDED back to the Circuit

Court of Mobile County, Alabama, from whence it came.

DONE and ORDERED this the 28th day of January, 2010.

s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

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