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Hall v. Nestman

United States District Court, W.D. Virginia, Harrisonburg Division

June 29, 2015

LEWIS A. HALL, Plaintiff,
v.
KENNETH J. NESTMAN, et al., Defendants.

MEMORANDUM OPINION

MICHAEL F. URBANSKI, District Judge.

This matter is before the court following protracted efforts by the parties to ascertain the citizenship of defendant Jalanda Y. Brown and determine whether the court has diversity jurisdiction over this case pursuant to 28 U.S.C. § 1332. Currently pending on the docket are plaintiff Lewis A. Hall's motion to remand (Dkt. # 5), supplemental motion to remand (Dkt. # 20) and motion to amend the complaint (Dkt. # 21) to allege that Brown is a citizen of North Carolina for jurisdictional purposes. For the reasons set forth below, each of these motions will be DENIED and this case will be set down for further proceedings.

I.

This action arises out of an automobile accident that occurred on November 25, 2012 in Shenandoah County. Hall filed suit in state court in October 2014[1] against defendants Kenneth J. Nestman, Jalanda Y. Brown, Rebecca E. Myron and Susan Myron. See Compl., Dkt. # 1-1. Nestman removed the case to federal court on December 1, 2014, asserting the court has diversity jurisdiction over this matter based on the allegations in the complaint that plaintiff is a citizen of North Carolina, defendants Nestman and Myron are citizens of New Jersey, and defendant Brown is a citizen of Pennsylvania. See Not. of Removal, Dkt. # 1, at ¶¶ 2, 3. Hall moved to remand pursuant to 28 U.S.C. § 1447(c), arguing defendant Brown had not consented to removal. Nestman opposed the motion, asserting Brown was not a properly served defendant and thus her consent to removal was not required. A hearing was scheduled for January 21, 2015. Prior to the hearing, counsel for Brown entered an appearance on the docket and filed an answer to the complaint and a notice of consent to removal to federal court. Based on these filings and representations made at the January 21st hearing, a question was raised as to the proper citizenship of Brown-specifically, whether she is a citizen of North Carolina, rather than of Pennsylvania, which would destroy diversity and leave the court without subject matter jurisdiction over this action. At plaintiff's request, the court gave the parties thirty days to sort out these issues and supplement their briefs.

On February 20, 2015, Hall filed a supplemental motion to remand as well as a motion to amend the complaint to allege that Brown is a North Carolina citizen. Hall submitted various affidavits, Department of Motor Vehicle records and voter registration information suggesting Brown maintained North Carolina citizenship for jurisdictional purposes. Nestman again opposed Hall's request for remand, arguing Hall's evidence was insufficient to establish that Brown was a citizen of North Carolina at the time the complaint was filed. The court held a second hearing on April 24, 2015, at which time it took the pending motions under advisement and ordered Nestman to arrange for and take the deposition of defendant Brown, limited in scope to the issue of her citizenship. See Dkt. # 25.

Brown was deposed on May 21, 2015. She testified that her mother has lived in Pennsylvania for "[a] long time" - more than five years. Brown Dep., Dkt. # 32-1, at 23. Brown herself lived in Pennsylvania and was issued a Pennsylvania driver's license in March 2011. Id. at 19, 22. At some point thereafter, she moved to North Carolina, and, at the time of the accident giving rise to this litigation, in November 2012, she was living in North Carolina.[2] However, she was frequently traveling back and forth to Pennsylvania to care for her ailing mother. Id. at 21-22, 24. Brown stated that she had hoped to move her parents down to North Carolina with her eventually. Id. at 26. But "[t]hey never left. They're still here [in Pennsylvania]." Id. at 26. Brown testified she was issued a North Carolina driver's license but does not currently have it in her possession. Id. at 19-20. And by virtue of that driver's license application, she is registered to vote in North Carolina. Id. at 63-64.

Brown testified that when she first moved to North Carolina, she worked for Actuarial Management Resources and lived in an apartment on Carriage Drive in Winston-Salem for about eight months. Id. at 27, 29. She then worked for United Healthcare in Greensboro, and lived in an apartment on Zuider Zee Court in Winston-Salem, [3] until August 2014. Id. at 30, 42-43; see also Aff. of Vickie Roberts, Dkt. # 20-1, at ¶ 2. At that point, she moved in with her cousin in an apartment on Legacy Park Drive in Winston-Salem for "a month or less, " Brown Dep., Dkt. # 32-1, at 44-46, before leaving for Georgia to be with her sick brother, id. at 30; see also id. at 14, 17. Brown testified that she spent only one month in Georgia, id. at 46, and that her move there was never intended to be a permanent one, id. at 42. She stayed with a friend whom she only knew by his nickname, "Sunshine, " id. at 14, and claimed to have no residence at the time, id. at 18. While in Georgia, she worked for a month or less with a company that assisted flight attendants and pilots. Id. at 31, 60. As for her intentions after leaving Georgia, Brown testified: "I wasn't for sure if I was going to go back to North Carolina or my parents, because it depended on my parents' condition. They were sickly." Id. at 42. She did not have an apartment in North Carolina to which she could return. Id . Brown had her mail forwarded to her cousin's Legacy Park Drive address. Id. at 52.[4]

Brown ended up going to Pennsylvania after leaving Georgia and has resided there continuously since. Id. at 46-47. Although she could not remember the exact date, Brown was certain she had left Georgia for Pennsylvania well before the Thanksgiving holiday in 2014. Id. at 51-52. She currently resides with her mother in Sinking Spring, Pennsylvania, id. at 10, 22, and carries in her possession her Pennsylvania driver's license, id. at 19. With respect to her intent to remain there, Brown was asked:

Q. Are you ever contemplating perhaps coming to North Carolina?
A. I wanted [my mother] to because this weather's really not good. But my mom's condition has worsened. She's not really fit to travel now. I don't know what I'm going to have to do at this point.
Q. And I'm not trying to put words in your mouth, but you would say at this point in your life do you know whether you're [more] likely to stay in Pennsylvania or more likely to come back to North Carolina?
A. I want to come back to North Carolina, but I don't know. Me and my sister we're trying to work out to see what we're going to do with our parents at this time. We're not for sure. You know, it's getting to the point that we might not be able to continue to help them because right now I'm kind of like the person that helps my mom, my dad, and my sister. So it all depends on how -. If their condition doesn't go - if it's slower, then I'll be up here for a minute. But if it progresses, I might have to think of something else. I'm not for sure. I don't know.
Q. And if you think of something else, would that something else likely be North Carolina?
A. Well, it would probably be like -. If I'd have to put her in assisted living or something of that nature -. If it was up to me, I would -. If I could, I would bring her down to the south. But her body can't take long periods of being in the car. She can't even go to ...

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