Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Woerner v. Killian Construction Co.

United States District Court, S.D. Alabama, Southern Division

March 6, 2018

EDWARD E. WOERNER, Plaintiff,
v.
KILLIAN CONSTRUCTION CO., et al., Defendants.

          REPORT AND RECOMMENDATION

          SONJA F. BIVINS UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Plaintiff Edward Woerner's Motion to Remand. (Doc. 5). The motion, which has been fully briefed, has been referred to the undersigned Magistrate Judge for entry of a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and S.D. Ala. CivLR 72(a)(2)(S). In his motion, Woerner argues that this case was improperly removed from the Circuit Court of Baldwin County, Alabama, because complete diversity of citizenship is lacking. Plaintiff contends that like himself, Defendant Christian Mills is domiciled in Alabama. (Docs. 6, 12). Defendants, on the other hand, assert that Christian Mills is a resident and citizen of the State of Florida. (Docs. 10, 15).

         In an Order dated January 31, 2018 (Doc. 16), the Court observed that the parties had presented conflicting, fragmented evidence such that the record was incomplete and inconclusive as to Mills' domicile at the time that the complaint was filed, and as a result, an evidentiary hearing was scheduled. The evidentiary hearing was conducted on February 22, 2018. Upon consideration of the parties' briefs and the testimony and materials submitted at the evidentiary hearing, the undersigned RECOMMENDS that Plaintiff's Motion to Remand be GRANTED.

         I. Factual and Procedural Posture.

         Plaintiff Edward E. Woerner filed this action in the Circuit Court of Baldwin County, Alabama.[1] (Doc. 1 at 1). In his complaint, Plaintiff alleges that Defendants Killian Construction Company and Christian Mills, Killian's representative, breached their contractual duty to compensate Plaintiff for work that Plaintiff had been subcontracted to complete. (Doc. 9 at 2). Specifically, Plaintiff avers that he is owed $350, 777.00 for work he completed for Defendants as part of his contractual duties and based on oral agreements between the parties. (Id. at 2, 3, 4).

         Defendants timely removed this action from the Circuit Court of Baldwin County to this Court under 28 U.S.C. § 1332 based on diversity jurisdiction. (Doc. 1 at 2). In their Notice, Defendants assert that complete diversity of citizenship exists between Plaintiff and Defendants, as Plaintiff, a natural person, is a citizen and resident of Alabama; Defendant Killian is a Missouri corporation with its principal place of business in Springfield, Missouri, thus making it a citizen of that state for diversity purposes; and Defendant Mills, a natural person, is a citizen of Florida. (Id. at 2, 3).

         In Plaintiff's motion to remand, he acknowledges that there is diversity of citizenship between himself and Defendant Killian, but contends that Defendant Mills is a citizen of Alabama, the same state of which Plaintiff is a citizen, thus defeating complete diversity of citizenship between the parties. (Doc. 5 at 1). According to Plaintiff, Defendant Mills is a resident of the City of Foley, Alabama, and has lived there with his wife and children for ten (10) consecutive months preceding the filing of the instant action. (Doc. 5-1 at 1). Therefore, Plaintiff contends that this Court lacks subject-matter jurisdiction. (Doc. 5 at 1).According to Plaintiff, Defendant Mills is a resident of the City of Foley, Alabama, and has lived there with his wife and children for ten (10) consecutive months preceding the filing of the instant action. (Doc. 5-1 at 1). Therefore, Plaintiff contends that this Court lacks subject-matter jurisdiction. (Doc. 5 at 1).

         While the parties agree that the $75, 0000 amount in controversy requirement has been satisfied, the citizenship of Defendant Mills is disputed.[2] At the evidentiary hearing, Defendant Mills testified that he was born and reared in the State of Florida. He also testified that he co-owns a home in Pensacola, Florida, for which he claims a homestead exemption, that his parents, former spouse, and three adult children reside in Florida, that he commenced renting an apartment in Panama City Beach, Florida, in March 2017, that he has been working on a job project in Panama City Beach, Florida, since November 2016, that he is registered to vote in Florida and last voted in the presidential election in November 2016, that his Regions bank account was opened in Florida, that he has a current Florida driver's license, that his cell phone was obtained in Florida and has a Florida prefix, that his personal physician is located in Pensacola, Florida, and that it has always been his intention to make Florida his home.

         Defendant Mills also testified that although he co-owns a home in Florida, it is occupied by his former spouse, and he has not lived in the home since 2009 or 2010. He further testified that he rented a house in Pensacola, Florida, when he ceased living with his former spouse, and that he later relocated to Gulf Shores, Alabama, and started renting a house with his fiancée in 2012. At the time, Mills was also working full-time in Alabama. He later purchased his current home in Foley, Alabama, where he lives with his fiancée and their two children, ages two and five.[3] Mills' fiancée is employed full-time in Foley, Alabama, and his minor children attend a nearby daycare. Mills testified that he receives mail both at his home in Alabama and his apartment in Panama City Beach, and that during the last couple of years, he paid income taxes in Alabama because that is where he was working. According to Mills, he currently spends three days at home with his family in Alabama and four days at his apartment in Panama City Beach, Florida, when working as a project manager. Mills also testified that his current work project is slated for completion in January 2019 and that he expects to then be assigned to another project in Florida or elsewhere. Mills' fiancée testified that she and the children have visited Mills on one occasion while he has been working in Panama City Beach, Florida, and that she did not like the area.

         II. Standard of Review

         A removing defendant has the burden of proving proper federal jurisdiction. See Adventure Outdoors, Inc. v. Bloomberg, 552 F.3d 1290, 1294 (11th Cir. 2008); Friedman v. New York Life Ins. Co., 410 F.3d 1350, 1353 (11th Cir. 2005) (“[i]n removal cases, the burden is on the party who sought removal to demonstrate that federal jurisdiction exists.”) (citation omitted); McCormick v. Aderholt, 293 F.3d 1254, 1257 (11th Cir. 2002) (noting that “the party invoking the court's jurisdiction bears the burden of proving, by a preponderance of the evidence, facts supporting the existence of federal jurisdiction.”); Pacheco de Perez v. AT&T Co., 139 F.3d 1368, 1373 (11th Cir. 1998) (“In a motion to remand, the removing party bears the burden of showing the existence of federal jurisdiction.”). Because removal infringes upon state sovereignty and implicates central concepts of federalism, removal statutes must be construed narrowly, with all doubts resolved in favor of remand. See Univ. of S. Ala. v. American Tobacco Co., 168 F.3d 405, 411 (11th Cir. 1999); Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994). Furthermore, “once a federal court determines that it is without subject matter jurisdiction, the court is powerless to continue.” Osting-Schwinn, 613 F.3d at 1092 (internal quotation marks omitted).

         “Eleventh Circuit precedent permits district courts to make reasonable deductions, reasonable inferences, or other reasonable extrapolations from the pleadings to determine whether it is facially apparent that a case is removable.” SUA Ins. Co. v. Classic Home Builders, LLC, 751 F.Supp.2d 1245, 1252 (S.D. Ala. 2010) (quoting Roe v. Michelin North America, Inc., 613 F.3d 1058, 1061-62 (11th Cir. 2010)). Courts may use judicial experience and common sense to determine whether the case stated in the complaint meets the requirements for federal jurisdiction. Id. Reliance on “speculation” is “impermissible.” Id. (citing Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 771 (11th Cir. 2010)).

         III. Analysis

         Courts have held that, “[f]or diversity purposes, a person is a citizen of the state in which he is domiciled.” Slate v. Shell Oil Co., 444 F.Supp.2d 1210, 1214 (S.D. Ala. 2006). 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. . . .'” McCormick, 293 F.3d at 1257-58 (quoting Mas v. Perry, 489 F.2d 1396, 1399 (5th Cir. 1974)).[4] This Court, in Slate, stated that the determination of one's domicile is a “totality of the circumstances” analysis ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.