2019 WL 5692651

United States District Court, N.D. Mississippi, Oxford Division.
Holbert PELL and Diane Pell, the wrongful death beneficiaries of Ryan Pell, and The Estate of Ryan Pell, Plaintiffs
v.
Jason WARDEN and Transport America, Defendants
NO. 3:18CV212-M-P
|
Signed 11/04/2019
Attorneys and Law Firms
Douglas Egan Adams, II, Jesse Mitchell, III, The Mitchell Firm, PLLC, Hiawatha Northington, II, Smith & Fawer LLC, Ridgeland, MS, for Plaintiffs.
Carl K. Wyatt, Glassman Wyatt Tuttle & Cox, PC, Memphis, TN, for Defendants.

OPINION and ORDER
MICHAEL P. MILLS, UNITED STATES DISTRICT JUDGE
*1 This cause comes before the court on the motion of the plaintiffs to remand this case to the Circuit Court of Tippah County, Mississippi. Defendants have responded in opposition to the motion, and the Court, having considered the memoranda and submissions of the parties, is now prepared to rule.

Facts
This matter was originally filed by plaintiffs Holbert Pell and Diane Pell, the alleged wrongful death beneficiaries of the deceased Ryan Pell, and the estate of Ryan Pell against defendants Jason Warden and Transport America in the Circuit Court of Tippah County, Mississippi, on the 23rd day of August, 2018.

Ryan Pell (hereinafter “Pell”), was allegedly pushing his bicycle on the shoulder or in the roadway of United States Highway 72 near Walnut, Mississippi on September 4, 2015 when he was struck and killed by a tractor trailer operated by defendant Jason Warden and owned by defendant Transport America.

On September 27, 2018, defendants timely removed the case to this Court. Plaintiffs then filed a motion to remand on April 18, 2019 with an attached memorandum and affidavit by Pell’s sister Tiffany Layne (hereinafter “Layne”), stating that Pell was domiciled in Tennessee, as is Defendant Warden, thus arguing that complete diversity does not exist.

Standard
“[A]ny civil action brought in a State Court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants […].” 28 United States Code § 1441(a). “Under the federal removal statute, a civil action may be removed from a state court to a federal court on the basis of diversity … because the federal court has original subject matter jurisdiction over such cases.” International Energy Ventures Management., Limited Liability Company. v. United Energy Group, Limited, 818 F.3d 193, 199 (5th Cir. 2016) (citing 28 U.S.C. § 1441(a)). “On a motion to remand, ‘[t]he removing party bears the burden of showing that federal jurisdiction exists and that removal was proper.’ ” Barker v. Hercules Offshore, Inc., 713 F.3d 208, 212 (5th Cir. 2013) (citing Manguno v. Prudential Prop. & Cas. Inc. Co., 276 F.3d 720, 722 (5th Cir. 2002)).

Ultimately, “removal statutes are to be construed strictly against removal and for remand.” Eastus v. Blue Bell Creameries, L.P., 97 F.3d 100, 106 (5th Cir. 1996) (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941)). And “[a]ny ambiguities are construed against removal.” Manguno, 276 F.3d at 723 (citing Acuna v. Brown & Root, Inc., 200 F.3d 335, 339 (5th Cir. 2000)).

When evaluating whether diversity jurisdiction exists, the court is to look at “the domicile of the parties, as opposed to their residence.” Combee v. Shell Oil Co., 615 F.2d 698, 700 (5th Cir. 1980). “ ‘The concept of complete diversity requires that all persons on one side of the controversy be citizens of different states than all persons on the other side.’ ” McLaughlin v. Mississippi Power Company, 376 F.3d 344, 353 (5th Cir. 2004) (quoting Harrison v. Prather, 404 F.2d 267, 272 (5th Cir. 1968)). To defeat the presumption of continuing domicile, the following elements must be present: (1) residence in a new state, and (2) intent to remain in that state indefinitely. Id. (citing Coury v. Prot, 85 F.3d 244, 250 (5th Cir. 1996)). “Evidence of a person’s place of residence is prima facie proof of his domicile.” Stine v. Moore, 213 F.2d 446, 448 (5th Cir. 1954). However, the court must consider “the actual fact of [a party’s] residence and [his or her] real intention of remaining there, as disclosed by [the party’s] entire course of conduct” Id.

Discussion
*2 Plaintiffs allege Pell was domiciled in Tennessee, as is defendant Warden, thus eliminating complete diversity. Defendants argue that Pell was domiciled in Georgia, thus creating complete diversity. Plaintiffs argue Layne’s affidavit is sufficient to prove Pell was domiciled in Tennessee, while defendants argue that multiple documents, as well as Pell’s estate being opened in the Probate Court of Walker County, Georgia, all establish that Pell was domiciled in Georgia.

A. Establishing Domicile
The question presented is one of domicile. In particular, was Pell domiciled in Georgia or did his domicile change to Tennessee eight months prior to his death? The Fifth Circuit in Coury v. Prot found that “[a] change in domicile typically requires only the concurrence of: (1) physical presence at the new location and (2) an intention to remain there indefinitely […].”85 F.3d 244, 250 (5th Cir. 1996). To determine Pell’s domicile, the Court “[…] is not limited to the pleadings; it may look to any record evidence, and may receive affidavits, deposition testimony or live testimony concerning the facts underlying the citizenship of the parties.” Id. 249. Abiding by Coury, this Court will apply the factors used in that decision to determine Pell’s domicile. The factors “include the places where the litigant exercises civil and political rights, pays taxes, owns real and personal property, has driver’s and other licenses, maintains bank accounts, belongs to clubs and churches, has places of business or employment, and maintains a home for his family.” Id. 251.

Tiffany Layne swears in her affidavit that Pell lived with Layne and her husband in Tennessee for eight months prior to his death. She further states that Pell had no other place to live since her parents, with whom he lived in Georgia, “no longer wished for him to live with them” and that Pell wanted to get a “fresh start in Tennessee.” [Doc. 24-1]. She admitted that Pell would “sometimes take trips where he would travel around on his bicycle, but he would always return home to us in Tennessee.” Id. In addition to Layne’s affidavit, Plaintiffs state in their memorandum that: “[…] [Pell] moved all of his belongings and forwarded all of his mail to his sister’s [Layne] home.” [Doc. 25, p. 1]. This statement is inappropriately presented to the Court since no evidentiary basis supports the statement and the Court therefore gives no credence to this assertion.

The defendants challenge Layne’s affidavit and present to the Court contradicting representations made by the plaintiffs concerning Pell’s domicile which were made to the Probate Court in Walker County, Georgia (hereinafter “Probate Court”). Plaintiffs admit that plaintiff Holbert Pell represented to the Probate Court that Ryan Pell was domiciled in Georgia at the time of his death [Doc. 39-1]. This statement directly contradicts Layne’s affidavit.

The doctrine of judicial estoppel “prevents a party from asserting a claim in a legal proceeding that is inconsistent with a claim taken by that party in a previous proceeding.” Reed v. City of Arlington, 650 F.3d 571, 573-74 (5th Cir. 2011) (quoting 18 James Wm. Moore et al., Moore’s Federal Practice § 134.30 at 63 (3d ed. 2011)). In essence, the doctrine is intended to protect the integrity of the judicial process by “prevent[ing] parties from playing fast and loose with (the courts) to suit the exigencies of self interest.” Brandon v. Interfirst Corporation, 858 F.2d 266, 268 (5th Cir. 1988) (quoting USLIFE Corporation v. United States Life Insurance Company, 560 F.Supp. 1302, 1304-05 (N.D. Tex. 1983)) (additional citation omitted).

*3 The Fifth Circuit in Jethroe v. Omnova Solutions, Incorporated, 412 F.3d 598 (5th Cir. 2005) directed courts to apply judicial estoppel if: “(1) the position of the party against which estoppel is sought is plainly inconsistent with its prior legal position; (2) the party against which estoppel is sought convinced a court to accept the prior position; and (3) the party did not act inadvertently.” Id. 600 (5th Cir. 2005) (citing In re Coastal Plains, Incorporated, 179 F.3d 197, 206-07 (5th Cir. 1999)).

The Court will now apply Jethroe’s elements to determine if the plaintiffs’ actions warrant judicial estoppel. First, plaintiffs argue that Pell was domiciled in Tennessee [Doc. 24-1], a position which is inconsistent with the legal proceeding initiated by the plaintiffs in Probate Court. Second, the Georgia Probate Court was convinced to accept the plaintiffs’ prior position since it found that Pell was domiciled in Georgia based on information submitted to it by the plaintiffs [Docs. 30-2, p. 1 and 39-3, p. 2]. Third, the plaintiffs did not act inadvertently since the language in the probate documents clearly directed the plaintiffs to identify the domicile of Pell. [Doc. 39-3, p. 3]. Additionally, the plaintiffs cannot prove inadvertence by claiming, as they do in plaintiffs’ responses to defendants’ second set of interrogatories related to jurisdictional facts, that their estate attorney directed them to open the estate in Georgia since there is no indication by the plaintiffs that they were told by the attorney to state that Pell was domiciled in Georgia. [Doc. 39-2, p. 2].

Plaintiffs clearly and without any inadvertence represented to the Probate Court that Pell’s domicile was in Georgia, and the Probate Court acted upon it. Thus, plaintiffs are estopped from alleging Pell was domiciled in Tennessee.

Though the above analysis establishes Pell’s domicile in Georgia, the Court will also consider, under the Coury factors, Holbert and Diane Pell’s responses to defendants’ first and second requests for admissions related to jurisdictional facts. The following requests and admissions are presented:
Request NO. 3. Admit that Ryan Pell did not own any real property located in Tennessee at the time of his death.
RESPONSE: Plaintiffs are without knowledge to either admit or deny this request with absolute certainty, but to the extent Plaintiffs are aware this request is admitted. [Doc. 39-1]
REQUEST NO. 4. Admit that Ryan Pell did not own any real property located in Georgia at the time of his death.
RESPONSE: Plaintiffs are without knowledge to either admit or deny this request with absolute certainty, but to the extent Plaintiffs are aware, this request is admitted. [Doc. 39-1]
REQUEST NO. 5. Admit that, prior to his death, Ryan Pell was not registered to vote in Tennessee.
RESPONSE: Plaintiffs are without knowledge to either admit or deny this request with absolute certainty, but to the extent Plaintiffs are aware, the request is admitted. [Doc. 39-1]
REQUEST NO. 6 Admit that, prior to his death, Ryan Pell held no bank accounts or financial accounts of any sort in Tennessee.
RESPONSE: Plaintiffs are without knowledge to either admit or deny this request with absolute certainty, but to the extent Plaintiffs are aware, Ryan Pell did not have any bank accounts [sic]. [Doc. 39-1]
REQUEST NO. 9 Admit that, prior to his death, Ryan Pell held no license of any kind issued by the State of Tennessee.
*4 RESPONSE: Plaintiffs are without knowledge to either admit or deny this request with absolute certainty, but to the extent Plaintiffs are aware Ryan Pell did not have any license in Tennessee. [Doc. 39-1]
REQUEST NO. 10 Admit that, prior to his death, Ryan Pell belonged to no clubs or churches located in Tennessee.
RESPONSE: Plaintiffs are without knowledge to either admit or deny this request with absolute certainty, but to the extent Plaintiffs are aware, this request is admitted. [Doc. 39-1]
INTERROGATORY NO. 29 Please identify all property owned by Ryan Pell at the time of his death and state the location of that property at the time of his death.
RESPONSE: Plaintiffs respond as follows: To Plaintiffs’ knowledge, none. Plaintiffs reserve the right to supplement and amend their responses. [Doc. 39-2].

The above responses establish that Pell was not domiciled in Tennessee. He owned no real property in Tennessee. He was not registered to vote in Tennessee. He also did not possess bank accounts nor did he have a Tennessee license. It also appears he developed no friendships in Tennessee.

Pell was domiciled in Georgia. Diversity exists because both Pell’s estate and Holbert and Diane Pell are domiciled in Georgia, defendant Warden is domiciled in Tennessee, and defendant Transport America is domiciled in Minnesota.

B. Sanctions
Defendants argue in their surreply in opposition to plaintiffs’ motion to remand that the plaintiffs should be sanctioned for filing a motion with false assertions to avoid a deadline the following day to disclose experts. [Doc. 39, p. 10-11]. Defendants propose to the Court that appropriate sanctions in this instance would include an order precluding Plaintiffs from designating any experts not designated as of April 19, 2019. Defendants also ask the Court to award costs and attorneys’ fees against the plaintiffs or their attorneys, or both, for filing the motion to remand because defendants allege the motion was not grounded in fact or warranted by law.

The Court will not consider the defendants’ request for sanctions in the absence of a separate motion adhering to Federal Rule of Civil Procedure 11(c)(2), which states as follows:
A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b). The motion must be served under Rule 5, but it must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. If warranted, the court may award to the prevailing party the reasonable expenses, including attorney’s fees, incurred for the motion.
Since the defendants have failed to file a separate motion addressing sanctions, this Court will not address these requests.

Conclusion
For the foregoing reasons, the Court finds that plaintiffs are judicially estopped from alleging Ryan Pell to have been domiciled in Tennessee; that Ryan Pell was domiciled in Georgia; that the parties are completely diverse; and the Court will not address the defendants’ request for sanctions absent a separate motion. Accordingly, Plaintiff’s Motion to Remand to State Court, [Doc. 24], is DENIED.

*5 SO ORDERED, this the 4th day of November, 2019.

All Citations
Slip Copy, 2019 WL 5692651

2019 WL 5729868

United States District Court, N.D. Ohio, Western Division.
Lori MIRACLE, et al., Plaintiffs,
v.
JPVS IMPORT EXPORT, INC., et al., Defendants.
Case No. 3:17-cv-788
|
Signed 11/05/2019
Attorneys and Law Firms
William C. Harsha, Rothstein Law Group, Southfield, MI, Michael J. Leizerman, Joshua M. Leizerman, Law Office of E.J. Leizerman, Toledo, OH, for Plaintiffs.
Sarah V. Beaubien, Eastman & Smith, Joseph S. Center, Gallagher Sharp, Toledo, OH, Joseph W. Pappalardo, Gallagher Sharp, Cleveland, OH, for Defendants.

MEMORANDUM OPINION AND ORDER
Jeffrey J. Helmick, United States District Judge

I. INTRODUCTION
*1 Citizens Insurance Company of the Midwest seeks to intervene in this diversity action pursuant to Rule 24. (Doc. No. 30). Plaintiffs Lori Miracle, Marc Miracle, and John Brown have filed a brief in opposition to Citizens’ motion, (Doc. No. 33), as have Defendants JPVS Import Export, Inc., and Danijel Aramovic. (Doc. No. 34). Citizens filed a brief in reply. (Doc. No. 37). For the reasons stated below, I grant Citizens’ motion to intervene.

II. BACKGROUND
Plaintiffs Lori Miracle and John Brown were injured when the vehicle in which they were riding was hit by a semi-tractor trailer operated by Aramovic. At the time of the accident, Aramovic was an employee of JPVS. Citizens paid no-fault insurance benefits to Brown and Lori pursuant to Section 500.3101, et seq., of the Michigan Compiled Laws. (Doc. No. 30 at 2-3). Citizens now seeks to intervene in this litigation in order to assert its statutory right of subrogation. (Doc. No. 30 at 3 (citing M.C.L. § 500.3116)).

III. STANDARD
Rule 24(a) permits a party to intervene in an action if the party timely “claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.” Fed. R. Civ. P. 24(a)(2); see Americans United for Separation of Church & State v. City of Grand Rapids, 922 F.2d 303, 305 (6th Cir. 1990).

IV. ANALYSIS
Defendants contend Citizens’ motion should be denied because it is untimely. (Doc. No. 34 at 4-6). A district court has discretion to determine whether an intervenor’s motions is timely. Stotts v. Memphis Fire Dep’t, 679 F.2d 579, 582 (6th Cir. 1982). Among the factors a court may consider are
(1) the purpose for which intervention is sought; (2) the length of time preceding the application for intervention during which the proposed intervenor knew or reasonably should have known of his interest in the case; (3) the prejudice to the original parties due to the proposed intervenor’s failure after he knew of or reasonably should have known of his interest in the case to apply promptly for intervention; (4) the existence of unusual circumstances militating against or in favor of intervention; and (5) the point to which the suit has progressed.
Id.

As Defendants note, Citizens filed its motion to intervene nearly a year and a half after Plaintiffs filed their complaint. Citizens indicates, however, it filed the motion because “[o]nly recently has [Plaintiffs’] counsel advised that Plaintiffs would not adequately represent Citizens’ subrogation interest.” (Doc. No. 30 at 3).

Rule 24 places no deadline on timeliness, and Citizens’ representations that it “does not anticipate requiring any additional discovery beyond discovery that has occurred in this matter relative to Plaintiffs’ claims and proofs for damages, presumably already presented to Defendants” minimizes any prejudice to the parties which potentially might have arisen from the temporal delay between filing of the complaint and the filing of Citizens’ motion.1 (Doc. No. 37 at 2). I conclude, under the circumstances, that Citizens filed its motion in a timely manner.

*2 Next, both Plaintiffs and Defendants contend there is no basis for Citizens’ motion to intervene because Plaintiffs seek only noneconomic damages and Michigan law does not permit Citizens to obtain reimbursement out of Plaintiffs’ recovery of noneconomic damages. (Doc. No. 33 at 5-6); (Doc. No. 34 at 9-10). In effect, these arguments demonstrate why Citizens is entitled to intervene as of right.

Michigan law permits an insurer to obtain reimbursement for benefits it paid to its insured if the insured recovers damages on tort claims arising from an accident outside of Michigan. M.C.L. § 500.3116(2). The insurer may be reimbursed only out of the damages awarded for injuries otherwise covered by “personal protection insurance benefits.” Id. Insurers may not obtain reimbursement out of any portion of the insured’s recovery which is for “noneconomic loss.” M.C.L. § 500.3116(4).

Plaintiffs acknowledge they initially alleged they incurred medical bills and suffered wage loss due to the accident. (Doc. No. 33 at 5). Plaintiffs seek to abandon those allegations, having agreed with Defendants that they only seek to recover noneconomic damages, and even preemptively argue they will seek leave to amend their complaint in order to remove any reference to medical losses or other economic damages. (Id. at 6). Plaintiffs do not claim there is no basis on which they could obtain economic damages. They simply no longer desire to pursue those damages.

Rule 24 anticipates precisely this scenario. A party may intervene as of right “unless existing parties adequately represent that [party’s] interest.” Fed. R. Civ. P. 24(a)(2). More to the point, where an insured might, “perhaps for strategic reasons, seek to downplay or ignore” the insured’s claim for reimbursement of medical expenses paid by an insurer or, “for whatever reason, fail to present evidence encompassing all of the medical expenses paid by their insurer,” the insurer is entitled to intervene in order to protect its statutory subrogation interest. Maricco v. Meco Corp., 316 F. Supp. 2d 524, 527 (E.D. Mich. 2004); see also Harris v. Gen. Coach Works, 37 F.R.D. 343 (E.D. Mich. 1964) (holding a worker’s compensation insurer seeking to assert a right of subrogation under Michigan law could intervene in litigation between an employee and the employer-insured).

Finally, Defendants claim Citizens failed to bring its subrogation claim within the one-year timeline described in M.C.L. § 500.3145. (Doc. No. 34 at 8-9). This argument is not persuasive, as an insurer must commence an action to enforce its rights of recovery or indemnity under § 500.3116 within one year of the date on which the insured receives payment of damages arising from the insured’s tort claim, not the date on which the insured was injured or on which the insured filed suit. M.C.L. § 500.3146.

V. CONCLUSION
For the reasons stated above, Citizens’ motion to intervene, (Doc. No. 30), is granted.

So Ordered.

All Citations
Slip Copy, 2019 WL 5729868

Footnotes

1
An intervenor’s delay in filing a motion to intervene, while not sufficient to defeat its motion, may have an impact on any subsequent requests for discovery. See, e.g., Maricco v. Meco Corp., 316 F. Supp. 2d 524, 527 (E.D. Mich. 2004).