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ART Van Furniture, LLC v. Zimmer

United States District Court, E.D. Michigan, Southern Division

June 11, 2019

ART VAN FURNITURE, LLC, Plaintiff,
v.
NEIL ZIMMER, KINGSWERE FURNITURE, LLC, and ASHLEY FURNITURE INDUSTRIES, INC., Defendants.

          OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

          BERNARD A. FRIEDMAN, SENIOR UNITED STATES DISTRICT JUDGE

         This 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 hearing.

         This is 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).

         The legal standards applicable to defendants' jurisdictional challenge are well known. As one respected treatise has commented,

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.

         5B C. 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).

         In the 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.

         Zimmer 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 Kingswere.
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.

         PageID.208. In his second declaration, dated April 17, 2019, Zimmer avers:

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 ...

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