United States District Court, D. Arizona
DOMINIC W. LANZA UNITED STATES DISTRICT JUDGE
before the Court is Plaintiff Jeffrey Walters's
(“Plaintiff”) motion to remand to state court.
(Doc. 11.) The motion is fully briefed and neither party has
requested oral argument. As explained below, the motion will
December 10, 2018, Plaintiff sued Nicholas Bizov
(“Defendant”) in Maricopa County Superior Court.
(Doc. 1-1.) In a nutshell, the complaint alleges that
Plaintiff sustained injuries in a car accident that was
caused by Defendant's negligence. (Id.)
January 15, 2019, Defendant removed the case to federal
court. (Doc. 1.) Defendant's removal notice stated that
removal was appropriate because the parties are
diverse-specifically, “Plaintiff . . . is a resident
and citizen of the State of Arizona” while
“Defendant . . . is a citizen of the State of
Nevada”-and the amount in controversy exceeds $75, 000.
(Id. at 1-2.)
January 29, 2019, Plaintiff filed a motion to remand the case
to state court. (Doc. 11.) Included as attachments to the
motion are a police report and an affidavit from a process
server. (Docs. 11-2, 11-3.) According to Plaintiff, these
materials show that “the defendant attends ASU [Arizona
State University], has rented an apartment in Arizona,
resides in Arizona, was personally served in Arizona, and
appears to be remaining in Arizona for an indefinite period
of time. As such, the defendant should be considered as a
resident of the State of Arizona and diversity of
jurisdiction does not exist.” (Doc. 11 at 2-3.)
February 11, 2019, Defendant filed a response to the motion
to remand. (Doc. 15.) Defendant argues that Plaintiff's
motion is “defective on its face” because
“the determining factor is diversity of Citizenship and
not mere dual residence.” (Id. at 1.)
Defendant acknowledges he currently resides in Arizona, so he
can attend ASU, but argues he should nevertheless be
considered a citizen of Nevada. (Id. at 2-3.) In
support of this claim, Defendant has submitted (1) a copy of
his driver's license, which was issued by the state of
Nevada (Id. at 10), and (2) an affidavit in which
Defendant avers that he maintains a permanent residence in
Nevada, owns property located in Nevada, is registered to
vote in Nevada, has a bank account in Nevada, maintains his
vehicle registration in Nevada, and files his tax returns as
a Nevada citizen. (Id. at 12-13.) Additionally,
Defendant states in the affidavit that “[a]t the time
this lawsuit was filed, and at all times on and after the day
of the accident up to the present, I intended for Nevada to
be my permanent home, to which I intended and intend to
return after I complete my higher education in Arizona. . . .
I intended for Arizona to be a temporary residence . . .
.” (Id. at 13.)
declined to file a reply.
motion to remand will be denied. Plaintiff claims that
Defendant is a citizen of Arizona, basing his argument
largely on Defendant's residency in Arizona. “But
the diversity jurisdiction statute . . . speaks of
citizenship, not of residency. . . . [A] natural person's
state citizenship is . . . determined by her state of
domicile, not her state of residence. A person's domicile
is her permanent home, where she resides with the intention
to remain or to which she intends to return.”
Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th
Cir. 2001). See also Wheels of Justice, LLC v. Title
Guaranty Escrow Servs., Inc., 2009 WL 10676993, *3 (D.
Haw. 2009) (“Plaintiff's argument fails to
recognize that residency is not synonymous with domicile and
party seeking to invoke diversity jurisdiction has the burden
of proof, Lew v. Moss, 797 F.2d 747, 749-50 (9th
Cir. 1986), by a preponderance of the evidence. McNatt v.
Allied-Signal, Inc., 972 F.2d 1340 (9th Cir. 1992);
see 13B Federal Practice § 3611 at 521 & n.
34. There is a strong presumption against removal
jurisdiction. Gaus v. Miles, Inc., 980 F.2d 564, 566
(9th Cir. 1992) (“Federal jurisdiction must be rejected
if there is any doubt as to the right of removal in the first
instance.”). There is also, however, “a
presumption in favor of an established domicile as against a
newly acquired one.” Lew, 797 F.2d at 751.
Ninth Circuit has identified a variety of factors that courts
should consider when determining which state should be
considered an individual's domicile, “including:
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, 797 F.2d at 750.
Here, these factors overwhelmingly support the conclusion
that, although Defendant may be temporarily residing in
Arizona to attend college, he is domiciled in (and is
therefore a citizen of) the state of Nevada. Defendant
maintains a Nevada driver's license and swore in his
affidavit that at the time this lawsuit commenced, he owned
personal property in Nevada, was registered to vote in
Nevada, maintained a bank account in Nevada, maintained the
registration for his motor vehicle in Nevada, and filed tax
returns in Nevada. Moreover, he swore that, at all relevant
times, he intended for Arizona to be a temporary residence.
Although self-serving assertions of intent are afforded
little weight when they conflict with the evidence,
Lew, 797 F.2d at 750, they may merit weight when
they accord with the evidence. See, e.g., Johnston v.
Cordell Nat. Bank, 421 F.2d 1310, 1311-12 (10th Cir.
1970); McBride v. Karumanchi, 2015 WL 4132974, *3
(M.D. Ala. 2015); Gordon v. Steele, 376 F.Supp. 575,
577-78 (W.D. Pa. 1974).
on the other hand, points to no facts to support his
assertion that Defendant “has manifested an intent to
remain in the State of Arizona, ” aside from the fact
that Defendant apparently spent at least part of his winter
break in Arizona. (Doc. 11 at 2.) That is scant evidence
indeed. The only reasonable conclusion, in light of the
evidence presented, is that Defendant is a citizen of Nevada.
IT IS ORDERED denying Plaintiff s motion to