United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO
BERNARD A. FRIEDMAN, SENIOR UNITED STATES DISTRICT JUDGE
matter is presently before the Court on defendants'
motion to dismiss [docket entry 17]. Plaintiff has responded
and defendants have replied. Pursuant to E.D. Mich. LR
7.1(f)(2), the Court shall decide this motion without a
a breach of contract and tortious interference case. Subject
matter jurisdiction is premised on diversity of citizenship,
28 U.S.C. § 1332(a). According to the complaint,
plaintiff is a citizen of Michigan, defendant Zimmer is a
citizen of Florida and New York, and defendants Ashley
Furniture, LLC and Kingswere Furniture, LLC are citizens of
Wisconsin. Compl. ¶¶ 12-15. Defendants seek
dismissal for lack of subject matter jurisdiction, pursuant
to Fed.R.Civ.P. 12(b)(1), on the grounds that diversity is
lacking because Zimmer is a citizen of Michigan, not New York
or Florida. Alternatively, defendants seek dismissal of the
complaint for failure to state a c l a i m p u r s u a n t t
o F e d . R . C i v . P. 12(b)(6).
legal standards applicable to defendants' jurisdictional
challenge are well known. As one respected treatise has
the extensive case law on this subject makes clear that the
burden of proof on a Rule 12(b)(1) motion is on the party
asserting that subject matter jurisdiction exists, which, of
course, typically is the plaintiff. . . . If jurisdiction is
based on diversity of citizenship, . . . the pleader must
show that real and complete diversity exists between all of
the plaintiffs and all of the defendants.
Wright & A. Miller, Federal Practice and
Procedure § 1350, pp. 211-36 (2004). When
defendants challenge subject matter jurisdiction, plaintiff
must support the complaint's jurisdictional averments
with “competent proof” and demonstrate the
existence of jurisdiction “by a preponderance of
evidence.” McNutt v. Gen. Motors Acceptance
Corp., 298 U.S. 178, 189 (1936). Further, “on a
Rule 12(b)(1) challenge to subject matter jurisdiction, the
court is empowered to resolve factual disputes” and
“the parties are free to supplement the record by
affidavits.” Rogers v. Stratton Indus., Inc.,
798 F.2d 913, 915-16 (6th Cir. 1986) (citations omitted).
present case, the dispute concerns the state of which Zimmer
is a citizen. As the Sixth Circuit has noted, “[s]tate
citizenship for the purpose of the diversity requirement is
equated with domicile. A person's previous domicile is
not lost until a new one is acquired. Establishment of a new
domicile is determined by two factors: residence in the new
domicile, and the intention to remain there.” Von
Dunser v. Aronoff, 915 F.2d 1071, 1072 (6th Cir. 1990).
“[D]omicile is an individual's permanent place of
abode where he need not be physically present, and residence
is where the individual is physically present much of the
time. An individual consequently may have several residences,
but only one domicile.” Eastman v. Univ. of
Mich., 30 F.3d 670, 673 (6th Cir. 1994). Therefore, to
defeat defendants' motion to dismiss for lack of subject
matter jurisdiction, plaintiff must show, with
“competent proof” and by a preponderance of the
evidence, that Zimmer resides either in New York or in
Florida and that he intends to remain there.
has submitted three declarations. In the first, dated April
10, 2019, he avers:
9. I have leased an apartment and relocated during the week
to Florida for the purposes of performing my work for
10. My family, home, and residence remain in Michigan. I
consider Michigan  to be my true home.
11. I am registered to vote in Michigan, own property in
Michigan, filed my 2016 and 2017 tax returns in Michigan, and
have a Michigan driver's license. I also intend to file
my 2018 tax returns in Michigan.
In his second declaration, dated April 17, 2019, Zimmer
2. To clarify the declaration I made on April 10, 2019, . . .
I filed my 2016 tax returns in Michigan and New York to
reflect the time I spent in New York before I moved to and
established my domicile in Michigan.
3. Since then, I filed my 2017 tax returns in Michigan, and
filed an extension to file my 2018 tax returns, which I