United States District Court, S.D. Alabama, Southern Division
EDWARD E. WOERNER, Plaintiff,
KILLIAN CONSTRUCTION CO., et al., Defendants.
REPORT AND RECOMMENDATION
F. BIVINS UNITED STATES MAGISTRATE JUDGE
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).
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.
Factual and Procedural Posture.
Edward E. Woerner filed this action in the Circuit Court of
Baldwin County, Alabama. (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).
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).
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).
the parties agree that the $75, 0000 amount in controversy
requirement has been satisfied, the citizenship of Defendant
Mills is disputed. 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.
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. 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.
Standard of Review
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
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
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)). This Court, in Slate, stated that
the determination of one's domicile is a “totality
of the circumstances” analysis ...