United States District Court, D. Arizona
Honorable Rosemary Marajtez United States District Judge.
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.
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.)
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.)
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.
Standard of Review
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).
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
Diversity of Citizenship
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
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 ...