United States District Court, E.D. Michigan, Southern Division
DEREK P. DUFF, Plaintiff,
FCA US, LLC and CARL J. MISSBACH, Defendants.
ORDER DENYING DEFENDANTS' MOTION TO DISMISS
PURSUANT TO FED. R. CIV. P. 12(B)(1) FOR LACK OF SUBJECT
MATTER JURISDICTION (ECF NO. 44)
CARAM STEEH UNITED STATES DISTRICT JUDGE
diversity action, Plaintiff Derek Duff has brought a
negligence claim against Defendants FCA US, LLC
(“FCA”) and Carl Missbach
(“Defendants”) arising out of injuries Duff
sustained in a motor vehicle accident on June 17, 2015, while
he was working to test Chrysler vehicles in Aurora, Colorado.
Plaintiff alleges Missbach, an FCA employee, negligently
struck him while driving a 2015 Jeep Cherokee Laredo. Now
before the court is Defendants' motion to dismiss for
lack of subject matter jurisdiction pursuant to Federal Rule
of Civil Procedure 12(b)(1).
argue Duff was a citizen of Michigan at the time the lawsuit
was filed; thus, they claim there is no diversity
jurisdiction. Because Duff has established that at the time
this lawsuit was filed, he was a citizen of Maine, his
childhood home where he had resided for 26 of his 27 years,
and where he was residing with his parents in order to treat
for his serious injuries and to receive daily living
assistance, diversity jurisdiction exists pursuant to 28
U.S.C. § 1332, and Defendants' motion shall be
was born in Bangor, Maine, where he grew up and attended high
school. He then attended the University of Maine at Orono.
After graduating with a bachelor's degree in mechanical
engineering, he accepted a position with IAV and moved to
Michigan for his employment in September, 2014. He obtained a
Michigan driver's license and Michigan no-fault insurance
on his automobile, and leased an apartment for one year.
After living in Michigan for ten months, he was injured on
the job while working in Colorado on June 17, 2015. After
in-patient hospitalization and rehabilitation in Denver,
Colorado, Duff moved back to Maine, where he continues to
live with his parents at their home, and who provide him with
care and support as he attempts to recover from his severe
injury to his leg.
date, Duff requires daily living assistance and cannot live
independently. Upon his return to Maine, Duff's father
and brother-in-law cleaned out his Michigan apartment and
brought his personal possessions back to Maine. He did not
renew his apartment lease. Following his accident, Duff has
undergone 18 surgeries to save his leg, his most recent one
involved implantation of a biological knee joint from a
cadaver donor. While Duff's dream is to relocate to
Arizona, or a similar climate, which would be more
comfortable for him given his injuries, for the foreseeable
future and until he is able to live on his own, he intends to
reside with his parents, as he has for the last four years.
only connection Duff continues to maintain to Michigan is
that he still has a Michigan's driver's license and
Michigan automobile insurance. On the other hand, since
returning to his childhood home, Maine is listed as
Duff's official mailing address, as his residence on his
tax returns, and as the legal address on all of his accounts
including his credit card. Duff is registered to vote in
Maine. The majority of his treating physicians and
therapists, numbering close to a dozen, are located in Maine;
all of his family and friends are in Maine, and Duff has a
new job for which he works from his home in Maine. His new
employer, who is located in Arizona, but for whom he works
remotely, had him sign a non-compete agreement which lists
Maine as his principal place of business. Duff also listed
Bradley, Maine, as his residence in his application for
social security disability benefits, his attorney and
accountant are located in Maine, all of his banking is
through Bangor Savings Bank of Maine, he has a Maine fishing
license which lists Maine as his residence, and he attends
church in Maine.
Standard of Law
Rule 12(b)(1) motion addresses whether the Court has
authority or competence to hear a case.” Gilbert v.
Ferry, 298 F.Supp.2d 606, 611 (E.D. Mich. 2003).
“[D]iversity of citizenship requires complete diversity
between all plaintiffs on one side and all defendants on the
other side.” Glancy v. Taubman Ctrs., Inc.,
373 F.3d 656, 664 (6th Cir. 2004). Diversity of citizenship
for purposes of 28 U.S.C. § 1332 is determined at the
time the complaint is filed. Kaiser v. Loomis, 391
F.2d 1007, 1009 (6th Cir.1968) (citations omitted);
Bateman v. E.I. Dupont De Nemours & Co., 7
F.Supp.2d 910, 911 (E.D. Mich. 1998). It is well established
that citizenship for purposes of the diversity requirement is
equated with domicile, not residence. Von Dunser v.
Aronoff, 915 F.2d 1071, 1072 (6th Cir.1990); see
Kaiser, 391 F.2d at 1009. “To acquire a domicile
within a particular state, a person must be physically
present in the state and must have either the intention to
make his home there indefinitely or the absence of an
intention to make his home elsewhere.” Stifel v.
Hopkins, 477 F.2d 1116, 1120 (6th Cir. 1973) (citations
omitted); see also Von Dunser, 915 F.2d at 1072
(“Establishment of a new domicile is determined by two
factors: residence in the new domicile, and the intention to
remain there.”); Kaiser, 391 F.2d at 1009
party invoking diversity jurisdiction must prove complete
diversity by a preponderance of the evidence. McNutt v.
Gen. Motors Acceptance Corp. of Indiana, 298 U.S. 178,
189 (1936); Everett v. Verizon Wireless, Inc., 460
F.3d 818, 829 (6th Cir. 2006). Moreover, a person can only
have one domicile at a time for purposes of diversity
jurisdiction-a previous domicile can not be lost until
another is adequately established. Eastman v. Univ. of
Michigan, 30 F.3d 670, 672-73 (6th Cir.1994); see
also Von Dunser, 915 F.2d at 1072.
determine the domicile of a party for purposes of considering
whether diversity jurisdiction exists, courts typically take
into account a variety of factors indicating the extent of a
particular party's ties to the purported domicile. These
include, but are not limited to:
[c]urrent residence; voting registration and voting
practices; location of personal and real property; location
of brokerage and bank accounts; membership in unions;
fraternal organizations, churches, clubs and other
associations; place of employment or business; driver
licenses and other automobile registration; [and] payment of
Persinger v. Extendicare Health Servs., Inc., 539
F.Supp.2d 995, 996-97 (S.D. Ohio 2008) (citing 13B Charles A.
Wright, Arthur R. Miller, and Edward H. Cooper, Federal
Practice and Procedure § 3612 (2d ed.1984)). Courts also
consider the location of a plaintiff's physician, lawyer,
accountant, and other service providers. Bateman, 7
Supp. 2d at 912. No. single one of these factors is
dispositive, and the analysis does not focus simply on the
number of contacts with the purported domicile, but also
their substantive nature. Persinger, 539 F.Supp.2d
at 997. In sum, domicile is “the place where a person
dwells and which is the center of his domestic, social, and
civil life.” Bateman, 7 F.Supp.2d at 912.