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Blum v. Duran

United States District Court, D. Arizona

March 20, 2014

Edward Blum and Nancy Blum, Plaintiffs,
v.
Samuel Duran, Jr., et al., Defendants.

ORDER

G. MURRAY SNOW, District Judge.

Pending before the Court is Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction. (Doc. 34.) Also before the Court is the related Plaintiffs' Motion to Enforce Federal Rules of Civil Procedure. (Doc. 37.) For the following reasons, the Motion to Dismiss is denied and the Motion to Enforce is dismissed as moot.

BACKGROUND

I. Procedural History

Edward Blum and Nancy Blum filed this dental malpractice action on May 10, 2013. (Doc. 1.) Despite an enlargement of time (Doc. 16) and what this Court determined to be a "due diligent effort to locate and serve Dr. Duran, " the Blums, who are proceeding pro se, were unable to serve him, and this Court granted permission to effectuate service by mail (Doc. 26). The Court also found at that time that "Dr. Duran's current address is unknown and his last known address was outside of Arizona in Texas." ( Id. )

On September 26, 2013 the Counsel for former Defendant Medical Protective Company assured this Court that Counsel was not aware of Duran's whereabouts, had not been hired by him, and not authorized by him to accept service. (Doc. 24.) Medical Protective Company's Counsel also sent a letter to the Plaintiffs stating that Duran's whereabouts were "unknown to Medical Protective, but last word was that he was practicing in Texas. I would assume a quick Google search on your end would likely provide the latest information on Dr. Duran." (Doc. 15-1 at 4.)

On December 3, 2013, Plaintiffs filed a Notice of Service and Request to Clerk to Enter Default on the Record (Doc. 27) which the Clerk of the Court granted on December 5 (Doc. 28). Within four days of the entry of default judgment the same Counsel, now representing Duran, filed a motion. (Doc. 29.) This motion argued that Duran had not been served properly and also raised the legal argument for lack of jurisdiction that is at issue here. ( Id. ) This Court set aside the default judgment. (Doc. 32.) On January 5, 2014, Plaintiffs were finally able to serve Duran through his Counsel. (Doc. 33.)[1]

Duran, through his Counsel, moved for the case to be dismissed for lack of subject matter jurisdiction because of a lack of diversity of citizenship. (Doc. 34.) The Plaintiffs Responded (Doc. 35) and Duran replied (Doc. 36). The Court ordered an evidentiary hearing because although Duran's Motion raised the possibility that this Court might not have jurisdiction, the Court found the briefing to be inadequate. At the evidentiary hearing on March 17, 2014, the Court began by stating that the Blums had made a prima facie showing that Duran was a citizen of Texas at the time the complaint was filed for diversity purposes. The Court then gave Duran an opportunity to rebut that finding by providing additional evidence beyond the inadequate information he had presented in his briefing. The Court heard arguments from Duran's counsel and testimony from Duran. At the end of the hearing the Court informed the parties that the Motion to Dismiss would be denied for reasons that would be explained in this order.

II. Facts Related to Diversity of Citizenship

The parties agree that the Blums are citizens of Arizona, but do not agree as to the citizenship of Duran. Duran is from Texas and has family there. Duran acknowledged that he held a Texas driver's license from the time he was a teenager until January 21, 2014, when he obtained the Arizona Driver License with a PO Box address that he submitted as an exhibit with his Motion to Dismiss on January 27, 2014. (Doc 34-1.) The Blums allege that on April 16, 2013, less than a month before this lawsuit was filed, Duran participated in a presentation in Texas with his daughter who is studying to for a career in the dental field. The Court asked Duran about this, and he acknowledged that his daughter was in school but did not respond further.

Duran graduated from Baylor dental school in Texas in 1994. He held a dental license in Texas from 1994 through 2006 and then again from 2008 through the present.[2] The current contact information for Duran on the Texas dental license site identifies an address in Texas. The Blums allege that while they have been attempting to locate and serve Duran, the contact address on his dental license has been changed repeatedly to different addresses in Texas. Although Duran has also held dental licenses in Arizona and Utah, the process server who attempted to locate Duran at the time this suit was filed found that both of those licenses had expired. (Doc. 22 at 10.) Duran presented no additional information about either of those dental licenses at the hearing.

Duran's testimony at the hearing was evasive, non-specific, and was often contradicted by other evidence. He attempted to testify that he has been semi-retired and living for years at a little ranchette near Snowflake, Arizona. He does not own or rent the ranchette, but a family member lets him stay there. He could not give an exact date or even a consistent year that he began to live there, sometimes stating 2010, but later stating that it was for sure by 2011. Yet he offered no explanation about why he had not obtained an Arizona driver license until less than two months ago. At other times he testified that he had been trying to live there or trying to retire to there for some time.

Duran testified that he worked at two locations for Sunwest Dental Group in Arizona but did not provide dates for when he began or ended work there. When asked where he lived while working in Sun City he said that he rented a room from a lady during the week and would return to the ranchette on the weekends. Duran was unable to identify the name of the person he rented the room from, or even the city in which the room was located. He offered no explanation about why Sunwest told the Blums that Duran had moved to Texas to practice dentistry after leaving its employment. He said that he told the people at Sunwest he was living at his ranchette in Arizona and they must have been guessing about him working in Texas.

Duran acknowledged that he is the owner of a dental practice in Texas. Texas apparently requires all dental practices be owned by a licensed dentist, and Duran described himself as the dentist of record who officially owns the practice even though it is managed and run by his family, primarily a brother-in-law. Duran claims that other dentists were hired to perform most of the work there but he acknowledged that he has been working there as well. He testified that he would interview the other dentists before they were hired and was responsible for their work as the owner. However, he said that there were a lot of them and he did not remember the full names of ...


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