Gammon v. McLain et al, No. 2:2014cv01184 - Document 50 (E.D. La. 2016)
Court Description: ORDER & REASONS granting 34 Motion to Dismiss for Lack of Jurisdiction. Party GEICO General Insurance Company and Safeco Insurance Company of Indiana dismissed. Signed by Judge Sarah S. Vance on 9/9/2016. (mmm)
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Gammon v. McLain et al Doc. 50 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA VIRGINIA GAMMON, INDIVIDUALLY AND O/ B/ O HER MINOR CHILD, SOPHIE GAMMON CIVIL ACTION VERSUS NO: 14-1184 LAWRENCE MCLAIN, ET AL. SECTION: “R” (3) ORD ER AN D REASON S Plaintiff Virginia Gam m on sues both defendant Safeco, Lawrence McLain’s auto insurer, and defendant GEICO, plaintiff’s insurer, for dam ages arising out of an autom obile accident. GEICO m oves to dism iss the com plaint for lack of subject m atter jurisdiction because there is not com plete diversity between the parties. For the following reasons, the Court GRANTS GEICO’s m otion. I. BACKGROU N D This lawsuit arises out of a car accident that occurred on or about May 31, 20 13. 1 1 According to the com plaint, at approxim ately 12:0 0 p.m., R. Doc. 1 at 3 ¶ 6. Dockets.Justia.com plaintiffs Virginia Gam m on and her daughter Sophie Gam m on were passengers in a car driven by Sophie’s father and Virginia’s husband, Sean Gam m on. 2 Lawrence McLain was driving behind the Gam m on vehicle. When the car in front of the Gam mon vehicle abruptly stopped, Sean Gam m on applied his brakes, but could not slow down enough to avoid hitting the bum per of the vehicle in front of his. 3 Plaintiffs allege that McLain was traveling at a high rate of speed behind their vehicle and then crashed into their stopped vehicle. 4 Plaintiffs allege that McLain’s negligence caused the accident, as well as their ensuing injuries. 5 Plaintiffs filed this lawsuit on May 23, 20 14, with diversity as the basis for jurisdiction. 6 Plaintiffs sued McLain, McLain’s auto insurer, Safeco, 7 and GEICO, who is Sean Gam m on’s auto insurer. Plaintiffs’ com plaint asserts two claim s against GEICO. The first arises under the Louisiana direct action statute, asserting that GEICO would be liable to them in the event that Sean 2 Id. Id. at 3 ¶¶ 9-10 . 4 Id. at 4 ¶ 12. 5 Id. at 5 ¶ 17. 6 R. Doc. 1. 7 Plaintiffs initially sued Liberty Mutual Insurance Co., which owned Safeco at the tim e of the accident. Plaintiffs have since voluntarily dism issed their claim s against Liberty Mutual. R Doc. 25. 2 3 Gam m on is found liable for any of plaintiffs’ injuries. 8 See La. Stat. Ann. § 22:1269(B)(1)(d). The second is brought under the term s of Sean Gam m on’s policy with GEICO, in which GEICO agreed to insure Virginia and Sophie Gam m on against injuries caused by an uninsured m otorist, in the event that McLain’s insurance policy is insufficient to cover their injuries. 9 Defendants answered plaintiffs’ com plaint, 10 and the case proceeded through the trial preparation stages with a two or three day jury trial scheduled for Novem ber 14, 20 16. 11 On J une 21, 20 16, defendant GEICO filed this Rule 12(b)(1) m otion to dism iss for lack of subject matter jurisdiction, arguing that there is not com plete diversity between the opposing parties. 12 GEICO’s m otion focuses on its own citizenship for the purposes of diversity. Defendant Safeco supported GEICO’s m otion, and also focused on the dom icile of defendant Lawrence McLain to argue that 8 9 10 11 12 R. Doc. 1 at 6 ¶ 20 . Id. at 6-7 ¶¶ 22-23. See R. Doc. 12 (GEICO’s answer); R. Doc. 19 (Safeco’s answer). R. Doc. 33. R. Doc. 34. 3 com plete diversity is lacking. 13 Plaintiffs filed their response in opposition on J une 28, 20 16, 14 and defendants both replied on J uly 5, 20 16. 15 II. LEGAL STAN D ARD Federal courts are courts of lim ited jurisdiction and possess power over only those cases authorized by the United States Constitution and federal statutes. Coury v. Prot, 85 F.3d 244, 248 (5th Cir. 1996). If a district court lacks jurisdiction over the subject m atter of a plaintiff's claim s, dism issal is required. See Fed. R. Civ. P. 12(b)(1). The lack of subject m atter jurisdiction m ay be raised at any tim e during pendency of the case by any party or by the court. See Kontrick v. Ry an, 540 U.S. 443, 456 (20 0 4) (“A litigant generally m ay raise a court's lack of subject-matter jurisdiction at any tim e in the same civil action, even initially at the highest appellate instance.”); McDonal v. Abbott Labs., 40 8 F.3d 177, 182 n. 5 (5th Cir. 20 0 5) (“[A]ny federal court m ay raise subject m atter jurisdiction sua sponte.”). Finally, “the citizenship of a party at the com m encem ent of the action is controlling for purposes of determ ining diversity jurisdiction and subsequent actions do not affect the 13 14 15 R. Doc. 33 at 3. R. Doc. 36. See R. Doc. 41 (GEICO’s reply); R. Doc. 43 (Safeco’s reply). 4 court's jurisdiction.” Aetna Cas. & Sur. Co. v. Hillm an, 796 F.2d 770 , 776 (5th Cir. 1986) (citing Oliney v. Gardner, 771 F.2d 856, 858 (5th Cir. 1985) (italics in original)). In ruling on a Rule 12(b)(1) m otion to dism iss, the court m ay rely on (1) the com plaint alone, presum ing the allegations to be true, (2) the com plaint supplem ented by undisputed facts, or (3) the com plaint supplem ented by undisputed facts and by the court's resolution of disputed facts. Den N orske Stats Oljeselskap As v. HeereMac Vof, 241 F.3d 420 , 424 (5th Cir. 20 0 1) (citing Barrera– Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996)). The party asserting jurisdiction generally bears the burden of establishing that the district court possesses jurisdiction. Ram m ing v. United States, 281 F.3d 158, 161 (5th Cir. 20 0 1). When exam ining a factual challenge to subject m atter jurisdiction that does not im plicate the m erits of plaintiff’s cause of action, the district court has substantial authority “to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Arena v. Gray bar Elec. Co., 669 F.3d 214, 223 (5th Cir. 20 12). Accordingly, the Court may consider m atters outside the pleadings, such as testim ony and affidavits. See Superior MRI Servs., Inc. v. All. Healthcare Servs., Inc., 778 F.3d 50 2, 50 4 (5th Cir. 20 15). 5 A court's dism issal of a case for lack of subject m atter jurisdiction is not a decision on the m erits, and the dism issal does not ordinarily prevent the plaintiff from pursuing the claim in another forum. See Hitt v. City of Pasadena, 561 F.2d 60 6, 60 8 (5th Cir. 1977). III. D ISCU SSION Defendants raise two possible jurisdictional defects: GEICO’s citizenship as an insurer in a direct action, and Lawrence McLain’s citizenship at the tim e plaintiffs filed suit. Because the resolution of McLain’s citizenship m akes it unnecessary to consider GEICO’s citizenship, the Court will address only McLain’s citizenship. In Straw bridge v. Curtiss, 7 U.S. (3 Cranch) 267 (180 6), the Supreme Court established the rule of com plete diversity for cases arising under diversity jurisdiction. Com plete 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 Pow er Co., 376 F.3d 344, 353 (5th Cir. 20 0 4) (citation om itted). Plaintiff is a citizen of Louisiana. Therefore, if any defendant is also a citizen of Louisiana, diversity is destroyed, and the 6 Court m ust dism iss this case for lack of subject matter jurisdiction. McLaughlin, 376 F.3d at 353; see also Fed. R. Civ. P. 12(b)(1). As a prelim inary matter, the Court notes that Lawrence McLain died on Septem ber 23, 20 14, 16 and was dism issed from this lawsuit shortly before his death. 17 But, whether diversity jurisdiction exists is determ ined at the com m encement of the lawsuit, at which point McLain was a defendant. See Hillm an, 796 F.2d at 776. Therefore, that he is no longer a party does not affect the resolution of the jurisdictional issue. As discussed above, when a factual challenge has been m ade to the basis of subject m atter jurisdiction, this Court m ay resolve the factual dispute by considering m atters beyond the pleadings, such as testim ony and affidavits. See Superior MRI, 778 F.3d at 50 4. Plaintiff subm its evidence that McLain was dom iciled in Georgia at the tim e they filed suit, while Defendant Safeco subm its evidence that McLain was actually dom iciled in Louisiana. For diversity purposes, a person’s citizenship is determ ined by where he or she is dom iciled. Mas v. Perry , 489 F.2d 1396, 1399 (5th Cir. 1974). A 16 17 R. Doc. 36 at 7. R. Doc. 6. 7 person’s dom icile is the “place of his true, fixed, and perm anent home and principal establishm ent, and to which he has the intention of returning whenever he is absent therefrom .” Id. (citation om itted). A change of dom icile m ay be effected “only by a change of two elem ents: (a) taking up residence in a different dom icile with (b) the intention to rem ain there.” Id. (citing Mitchell v. United States, 88 U.S. 350 (1875)). When the dom icile of a party for diversity purposes is in doubt, district courts must evaluate all of the circum stances and m ake a determ ination on a case-by-case basis. 13E Wright & Miller, Fed. Prac. & Proc. Civ. § 3612 (3d ed.) (collecting cases). Factors frequently taken into account include: the party’s current residence, voter registration and voting practices, situs of personal and real property, location of brokerage and bank accounts, place of em ploym ent or business, driver's license and autom obile registration, payment of taxes, as well as several other aspects of hum an life and activity. See Coury , 85 F.3d at 251. No single factor is conclusive. Id. The Court will consider the evidence on all of the relevant factors and weigh it to determ ine where Lawrence McLain was dom iciled at the tim e this lawsuit was filed. Because Safeco argues that McLain changed his dom icile, it has the burden of proof on that issue, though the ultim ate burden on the 8 issue of diversity jurisdiction rem ains with Gam m on. See Coury , 85 F.3d at 250 . In support of her position, Gam m on argues that McLain actively m aintained a home in Georgia that he allegedly considered his actual residence. 18 To bolster this contention, Gam m on subm its the accident report and a receipt from the body shop that repaired McLain’s vehicle after the accident, both from the day of the accident. 19 The report and receipt show that when McLain was asked for his hom e address, he gave a Georgia address. 20 The accident report also shows that McLain’s vehicle had a Georgia license plate, it did not have a Louisiana break tag, and that McLain had a Georgia driver’s license at the tim e of the accident. 21 In response, Safeco subm its evidence dating back to 20 0 9 to show that McLain intended to leave Georgia and settle in Louisiana permanently. The evidence shows that in December 20 0 9, McLain divorced his wife. 22 As part of the divorce settlem ent, McLain gave his ex-wife exclusive use of their Georgia home located at 5 Woodbine Point in Newnan, GA, the sam e hom e 18 19 20 21 22 R. Doc. 36 at 8. R. Doc. 36-1 (receipt); R. Doc. 36-2 at 4 (accident report). Id. R. Doc. 36 at 12; R. Doc. 36-2 at 4. R. Doc. 43-1 at 2. 9 that was listed as McLain’s address on the accident report and body shop receipt. 23 Per the divorce agreem ent, McLain and his wife agreed to sell the hom e 36 m onths after the execution of their divorce agreem ent. 24 On April 9, 20 10 , McLain m arried J udith Elaine J enkins King in Louisiana. 25 In their m arriage contract, both Ms. King and McLain declared that they are dom iciled in St. Tam m any Parish, Louisiana. 26 On November 12, 20 10 , McLain purchased a parcel of land in St. Tam many Parish, 27 and bought a m obile hom e that was delivered there in May 20 11. 28 On March 19, 20 13, McLain entered into a short-sale agreement to sell his Newnan, Georgia property to a bank, and listed 22495 Maurice Taylor Road, Bush, LA as his hom e address. 29 This was also the address used by McLain when he filed an insurance claim with Safeco days after the accident. 30 McLain was issued a Louisiana driver’s license on J uly 9, 20 13 with the same Louisiana 23 Id. at 6. Id. 25 R. Doc. 43-7 at 1. 26 Id. 27 R. Doc. 43-2 at 1. 28 R. Doc. 43-3. 29 R. Doc. 43-4 at 8-9. 30 R. Doc. 36-5 at 1. This m eans that at the tim e of the accident McLain was giving both a Georgia address and a Louisiana address when asked for his hom e address. 10 24 address. 31 Finally, McLain paid Louisiana state incom e taxes in 20 11, 20 12, and 20 13. 32 Based on this inform ation, the Court finds that at the tim e this lawsuit was filed, Lawrence McLain lived with his wife in Louisiana, owned property solely in Louisiana, had a Louisiana driver’s license, and paid Louisiana state incom e taxes for at least the previous three years. The Fifth Circuit has recognized that there is a presumption that a person’s current residence is also his or her domicile. See Slaughter v. Toy e Bros. Yellow Cab Co., 359 F.2d 954, 956 (5th Cir. 1966). Although this presum ption can be rebutted, here, the remaining evidence further supports finding McLain’s dom icile to be Louisiana. Therefore, the weight of the evidence indicates that McLain m oved his residence to Louisiana in 20 10 and intended to rem ain here. See Mas, 489 F.2d at 1399. Because the Court finds that McLain’s dom icile was Louisiana at the tim e this suit was filed, the parties lack com plete diversity. See McLaughlin, 376 F.3d at 353. Absent diversity, this Court lacks jurisdiction, and the case m ust be dism issed. See Fed. R. Civ. P. 12(b)(1). 31 R. Doc. 43-5. R. Doc. 43-6 at 1 (20 11 tax return); at 6 (20 12 tax return); at 10 (20 13 tax return). 11 32 IV. CON CLU SION For the reasons stated above, the Court GRANTS defendant’s Motion to Dism iss. Accordingly, Gam m on’s claim s against defendant GEICO and Safeco are DISMISSED WITHOUT PREJ UDICE. New Orleans, Louisiana, this _9th day of September, 20 16. __ _______________________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 12
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