Opinion
CIV. NO. 4:23cv6
2023-04-06
Elijah GAMBRELL, Plaintiff, v. TITUS TRANSP. SERVS., LLC, et al., Defendants.
Ashley Tupper Davis, Jason Wade Konvicka, Allen, Allen, Allen & Allen, Richmond, VA, for Plaintiff. Ashley Ann Davoli, Michael Anthony Montgomery, Eckert Seamans Cherin & Mellott LLC, Richmond, VA, for Defendants Titus Transport Services, LLC, NEAT Enterprises, LLC. Ashley Ann Davoli, Eckert Seamans Cherin & Mellott LLC, Richmond, VA, for Defendant Thomas Hughes. Scott Collins Hartin, McKenry Dancigers Dawson PC, Virginia Beach, VA, for Defendant Timothy Liley.
Ashley Tupper Davis, Jason Wade Konvicka, Allen, Allen, Allen & Allen, Richmond, VA, for Plaintiff. Ashley Ann Davoli, Michael Anthony Montgomery, Eckert Seamans Cherin & Mellott LLC, Richmond, VA, for Defendants Titus Transport Services, LLC, NEAT Enterprises, LLC. Ashley Ann Davoli, Eckert Seamans Cherin & Mellott LLC, Richmond, VA, for Defendant Thomas Hughes. Scott Collins Hartin, McKenry Dancigers Dawson PC, Virginia Beach, VA, for Defendant Timothy Liley. REMAND MEMORANDUM ORDER REBECCA BEACH SMITH, SENIOR UNITED STATES DISTRICT JUDGE
This matter comes before the court on Plaintiff's Motion to Remand to State Court (Corrected) ("Motion to Remand"), ECF No. 22, and Motion for Attorneys' Fees (Corrected) ("Motion for Attorneys' Fees"), ECF No. 24, as well as the accompanying Memoranda in Support, ECF Nos. 23, 25. For the reasons stated below, Plaintiff's Motion to Remand, ECF No. 22, is GRANTED, and Plaintiff's Motion for Attorneys' Fees, ECF No. 24, is DENIED.
Plaintiff initially filed a Motion to Remand to State Court and Motion for Attorneys' Fees in one submission. ECF Nos. 15 (Motion), 16 (Memorandum in Support). However, the Clerk directed Plaintiff to resubmit because there was more than one motion for relief contained in the single filing. Because no substantive changes were made to the Motions, the court will only reference the separately filed submissions, ECF Nos. 22, 24, and their respective Memoranda in Support, ECF Nos. 23, 25.
I. BACKGROUND
This is a case in which a myriad of rapid-fire motions and responses were submitted to the court. To make sense of the procedural history in this case, the court summarizes the relevant filings in chronological order.
On January 24, 2023, Plaintiff filed a Complaint against Defendants in the Circuit Court of the City of Hampton, Virginia, alleging various state law negligence and vicarious liability claims arising from an automobile accident that occurred on December 1, 2021, in New Kent County, Virginia. See ECF No. 1-1. The following day, Defendants Titus Transport Services, LLC ("Titus"), and NEAT Enterprises, LLC ("NEAT"), together the "Removing Defendants," filed a Notice of Removal, claiming that this court has diversity jurisdiction over the action, pursuant to 28 U.S.C. § 1332(a)(1). See ECF No. 1 at 1. In their Notice of Removal, the Removing Defendants allege that complete diversity exists because Defendants Titus and NEAT are Texas companies, Defendants Hughes and Liley are citizens of Virginia, and Plaintiff is a citizen of Pennsylvania. Id. at 2-3.
In their Notice of Removal, the Removing Defendants stated that Defendants Hughes and Liley did not need to consent to the removal because "no Defendants [had] been properly joined and served in this action." ECF No. 1 at 4 (citing 28 U.S.C. § 1446(b)(2)(A)). The Removing Defendants also asserted that "the 'forum defendant rule' of 28 U.S.C. § 1441(b)(2) does not apply" because "neither Hughes nor Liley . . . ha[d] been properly joined and served as a defendant in this action." Id. A recent case in this District upheld the "snap removal" tactic, whereby defendants removed the case brought against them prior to being properly served and thus avoided the forum defendant rule. See generally Spigner v. Apple Hosp. REIT, Inc., No. 3:21cv758, 2022 WL 1451397, at *4-6 (E.D. Va. Mar. 1, 2022) (Novak, J.) (upholding the "snap removal" litigation tactic).
Then, on February 11, 2023, the Removing Defendants filed a Motion to Dismiss Counts IV and V of the Complaint, which allege that Titus and NEAT, respectively, were "independently negligent" on various grounds. See ECF Nos. 1-1 at 6-11 (Complaint), 9 (Motion to Dismiss), 10 (Memorandum in Support). The Removing Defendants also filed Answers to the Complaint and Crossclaims against Defendant Liley that same day. See ECF Nos. 11 (NEAT Answer/Crossclaims), 12 (Titus Answer/Crossclaims).
Shortly thereafter, on February 14, 2023, Plaintiff filed a Motion to Remand, claiming that "complete diversity of citizenship does not exist" and that the action was improperly "snap-removed," ECF No. 22 at 1, along with a Motion for Attorneys' Fees, maintaining that "the Removing Defendants unreasonably refused to cooperate in having this case remanded back to the Circuit Court . . . ," ECF No. 24 at 1. This same day, Plaintiff also filed a Motion to Strike and accompanying Memorandum in Support, ECF Nos. 17, 18, and a Motion to Stay or Extend Deadline for his response to Defendants' Motion to Dismiss and accompanying Memorandum in Support, ECF Nos. 20, 21.
See supra n.3 and accompanying text.
See supra n.2 and accompanying text.
The court granted Plaintiff's Motion to Strike, ECF No. 31, and Plaintiff ended up timely filing a Response in Opposition to Defendants' Motion to Dismiss on February 27, 2023, ECF No. 32.
On February 24, 2023, Removing Defendants filed an Opposition to Plaintiff's Motion to Remand, ECF No. 29, and an Opposition to Plaintiff's Motion for Attorneys' Fees, ECF No. 30. Plaintiff then filed a Rebuttal Brief in Support of his Motion to Remand on March 1, 2023. ECF No. 37. And on March 6, 2023, Removing Defendants filed a Reply in Further Support of Motion to Dismiss Counts IV and V of Plaintiff's Complaint. ECF No. 38.
In between these filings, on February 28, 2023, Defendant Liley filed his Answers and Crossclaims. ECF Nos. 33, 34, 35.
Various answers and crossclaims continued to be filed between March 9, 2023, and March 16, 2023. ECF Nos. 39, 43, 44, 45, 46.
Having been fully briefed, Plaintiff's Motion to Remand and Motion for Attorneys' Fees are now ripe for judicial determination.
II. PLAINTIFF'S MOTION TO REMAND
A. Legal Standard
Title 28, Section 1441 of the United States Code allows a defendant in a civil case to remove any action brought in state court which may have originally been brought in federal court. Importantly, it is the party seeking removal who bears "the initial burden of establishing federal jurisdiction." Abraham v. Cracker Barrel Old Country Store, Inc., No. 3:11cv182, 2011 WL 1790168, at *1 (E.D. Va. May 9, 2011) (Hudson, J.) (citing Mulcahey v. Columbia Organic Chem. Co., 29 F.3d 148, 151 (4th Cir. 1994)). "Because courts must strictly construe removal jurisdiction, when federal jurisdiction is doubtful, a remand is necessary." Borders v. Ford Motor Co., No. 4:22cvl21, 652 F. Supp. 3d 596, 599-600 (E.D. Va. Jan. 20, 2023) (Smith, J.) (internal citations and quotation marks omitted).
Federal courts have original jurisdiction over civil actions based on diversity of citizenship or federal questions. See 28 U.S.C. §§ 1331, 1332. In order for a district court to exercise jurisdiction based on diversity of citizenship, the amount in controversy must be greater than $75,000 and the plaintiff and defendants must be citizens of different states. Id. § 1332(a)(1).
As there is no federal question involved in the instant case, the only issue before the court is whether diversity of citizenship exists. See generally ECF No. 1-1.
Here there is no dispute that the amount in controversy is satisfied, as Plaintiff seeks $25,000,000 in damages. See ECF No. 1-1 at 11. It is also undisputed that, for diversity purposes, Removing Defendants are both citizens of the State of Texas, and Defendants Liley and Hughes are citizens of the Commonwealth of Virginia. See ECF Nos. 1 at 3, 23 at 2. Therefore, the only dispute is whether Plaintiff is a citizen of Pennsylvania, as Removing Defendants assert, or is a citizen of Virginia, as Plaintiff himself maintains. See ECF Nos. 1 at 2, 23 at 2. If the court finds that Plaintiff is a citizen of the Commonwealth of Virginia, like Defendants Liley and Hughes, complete diversity is broken, and no subject matter jurisdiction exists. See 28 U.S.C. § 1332(a)(1); Navy Fed. Credit Union v. LTD Fin. Servs., LP, 972 F.3d 344, 352 (4th Cir. 2020) (noting that "no plaintiff may share a citizenship with any defendant"); see also 28 U.S.C. § 1447(c) ("If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.").
B. Analysis
1. Evidence Submitted by the Parties
Both parties have submitted several pieces of evidence to support their positions regarding Plaintiff's citizenship. As an initial matter, the court notes that Plaintiff's citizenship will be evaluated as of January 24, 2023, the date on which his Complaint was filed. See ECF No. 1-1; Prudential Ins. Co. of Am. v. Shenzhen Stone Network Info. Ltd., 58 F.4th 785, 794 (4th Cir. 2023) (citing Freeport-McMoRan, Inc. v. K N Energy, Inc., 498 U.S. 426, 428, 111 S.Ct. 858, 112 L.Ed.2d 951 (1991)).
On the one hand, Plaintiff vehemently maintains that he is a citizen and resident of Virginia. ECF Nos. 23 at 1; 23-1 at 1 (first affidavit); 37-1 at 1 (second affidavit). To support this assertion, Plaintiff points to his living and residing in Virginia since 2020, see ECF No. 23 at 3, ECF Nos. 23-2, 23-3, 23-4 (apartment leases listing Plaintiff as the tenant from 2020 through 2023); his holding a Virginia driver's license since March 2022, see ECF Nos. 23 at 3, 23-5; and his car being registered in Virginia (both his current car, and the one he was driving at the time of the accident), ECF Nos. 23 at 3, 23-6. Plaintiff also asserts in his affidavit that he pays federal income taxes under a Virginia address, that he has not paid federal taxes in Pennsylvania since 2019, and that he intends to remain in Virginia after he medically retires from the military. ECF No. 23-1 at 2; see ECF Nos. 29-15 at 2, 8 (Plaintiff's 1040-X Form from 2020 denoting that his home address is in Virginia but stating that his taxpayer state residency is Pennsylvania), 29-16 at 2, 4 (Plaintiff's 1040 Form from 2021 illustrating the same), 29-17 at 2, 6 (Plaintiff's 1040 Form from 2022 illustrating the same).
Plaintiff does concede, however, that he has neglected to change his State of Legal Residence with the military finance office "because [he] did not realize that [he] could or should do so," and acknowledges that this consequently requires him to file state taxes through Pennsylvania. ECF No. 23-1 at 2. He also recognizes his familial ties to Pennsylvania and acknowledges that he spent time recovering from the accident at his mother's home before returning to Virginia. Id. Nonetheless, Plaintiff still maintains that the evidence as a whole demonstrates that he was domiciled in Virginia at the time his Complaint was filed, and that he intends to remain a Virginia citizen indefinitely. See ECF Nos. 23, 37.
The Removing Defendants disagree; it is their position that Plaintiff is a resident of Pennsylvania for diversity purposes. ECF No. 1 at 2. The Removing Defendants primarily rely on the fact that Plaintiff still lists Pennsylvania as his State of Legal Residence with the military, id. at 2-3, ECF No. 29 at 7-9; had, until recently, failed to register to vote in Virginia, see ECF No. 29 at 7; and provided tax documents showing filings in Pennsylvania but failing to demonstrate that he has ever paid Virginia state taxes, ECF No. 29 at 9-10, see ECF Nos. 29-13, 29-14, 29-15, 29-16, 29-17. The Removing Defendants also point to Plaintiff's possession of a Pennsylvania driver's license at the time of the accident, see ECF Nos. 1 at 2, 1-4 at 2 (police crash report listing Plaintiff's address in Pennsylvania, but his vehicle registration tied to a Virginia address), 1-5 (former Pennsylvania driver's license), and his post-accident medical and billing records, which repeatedly list a Pennsylvania address and demonstrate his intended (and actual) recovery at his mother's home, ECF Nos. 29 at 2, 29-3 (medical record and bill stamped on April 6, 2022), 29-4 (December 2021 discharge notes), 29-5 (January 2022 after visit summary listing his preferred pharmacy as one in Pennsylvania), 29-6 (treatment records from a provider in Pennsylvania, where his initial visit took place in December 2021, and he was discharged in April 2022). In addition, Removing Defendants stress the special rules that apply to members of the armed forces when it comes to determining citizenship, which they assert further supports the conclusion that Plaintiff is a citizen of Pennsylvania, and not Virginia. See ECF No. 29 at 6-7. According to the Removing Defendants, the evidence provided to the court, at best, illustrates that "Plaintiff began the process of changing his domicile from Pennsylvania to Virginia - but did not complete it." Id. at 11.
Since filing his Complaint, it appears that Plaintiff did register to vote in Virginia around February 2023. ECF No. 37-1. However, because he took this action after filing his Complaint, it is not relevant to the court's inquiry.
2. Discussion and Conclusion
Courts have long held that an individual's citizenship is determined by his domicile, or "the state the individual considers [his] permanent home." Gambelli v. United States, 904 F. Supp. 494, 496 (E.D. Va. 1995) (Jackson, J.) (citing Dyer v. Robinson, 853 F. Supp. 169, 172 (D. Md. 1994)). An individual may only have one domicile, which is marked "by an intention to remain for an unlimited time," making it distinct from a place that could be considered an individual's mere residence. Id. (citing In re Wellberg, 12 B.R. 48 (Bankr. E.D. Va. 1981)); see Phillips v. Packard, No. 3:07cv300, 2007 WL 2471532, at *2 (E.D. Va. Aug. 24, 2007). And for members of the armed forces, simply being "assigned to duties in another state" is not enough to change domiciles, "unless [the servicemember] indicates an intent to abandon such original domicile and adopt a new one." Gambelli, 904 F. Supp. at 496-97 (citing Deese v. Hundley, 232 F. Supp. 848, 850 (W.D.S.C. 1964)).
After reviewing the evidence before the court and evaluating it as of the date on which Plaintiff's Complaint was filed, the court is satisfied that the record establishes, by a preponderance of the evidence, Plaintiff's physical presence in Virginia as well as his intent to remain there, based on the several voluntary acts Plaintiff has taken over the past few years to change his domicile from Pennsylvania to Virginia. See Phillips, 2007 WL 2471532, at *2 (listing the factors courts may consider when determining a party's domicile, but noting that the list is non-exhaustive, and "instead should depend on the facts of a particular case"). First and foremost, the court emphasizes that Plaintiff obtained a Virginia driver's license nearly ten (10) months before filing his Complaint, ECF No. 23-5, which is often a strong indicator of domicile. See e.g., Scott v. Cricket Communs., LLC, 865 F.3d 189, 195 (4th Cir. 2017) (listing driver's license as a factor often considered in an inquiry into an individual's domicile); Phillips, 2007 WL 2471532, at *2 (same); Gambelli, 904 F. Supp. at 497 (same). Also convincing to the court is Plaintiff's off-base apartment rental, which he has maintained since May 2020, see ECF Nos. 23-2, 23-3, 23-4, and his Virginia vehicle registration for his current car and the one that was involved in the accident, see ECF Nos. 1-4 at 2, 23-6. See Gambelli, 904 F. Supp. at 497 (including vehicle registration and off-base housing rental among factors for courts to consider); Phillips, 2007 WL 2471532, at *2 (listing residence and vehicle registration among the factors often considered); cf. Bracey v. Hanson, No. 3:04cv456, 2006 WL 839555, at *2-3 (S.D. Miss. Mar. 27, 2006) (holding that a defendant-military person could not establish his domicile in a state where, among other things, he did not have a driver's license issued by that state and rented an off-base apartment only after the complaint was filed). The court also gives some weight to Plaintiff's sworn statement, filed under penalty of perjury, in which he insists that he is a citizen of Virginia, where he intends to remain. ECF Nos. 23-1 at 2, 37-1.
Although Removing Defendants have provided some evidence that cuts against this conclusion, it still falls short of satisfying Defendants' burden of proving jurisdiction. See Mulcahey, 29 F.3d at 151 ("Because removal jurisdiction raises significant federalism concerns, we must strictly construe removal jurisdiction. If federal jurisdiction is doubtful, a remand is necessary.") (internal citations omitted). First, the court notes that it carefully considered the fact that Plaintiff failed to change his State of Legal Residence with the military, and the complexity surrounding Plaintiff's multifaceted tax filings. ECF No. 29 at 7-10; see Middleton v. Stephenson, 749 F.3d 1197, 1201 (10th Cir. 2014) (listing "payment of taxes" among the factors to consider); Phillips, 2007 WL 2471532, at *2 (same). No doubt, if these were the only pieces of evidence before the court, the outcome in this case would be different. But, in this case, Plaintiff possesses a Virginia driver's license, ECF No. 23-5, has maintained an off-base apartment lease in Virginia since 2020, see ECF Nos. 23-2, 23-3, 23-4, and has registered two (2) vehicles in Virginia, including the one he currently drives, see ECF Nos. 1-4 at 2, 23-6. Moreover, while the court notes that voter registration can be "a weighty factor" in the domicile inquiry, see Macone v. Nelson, 274 F. Supp. 2d 136, 140 (D.P.R. 2003) (internal citation and quotation marks omitted), in the case at bar, where Plaintiff has not voted in years, the court declines to give this factor significant weight. See ECF No. 37-1 at 1 (indicating that Plaintiff has not voted since 2016). The same goes for years-old medical and billing records, which were created when Plaintiff had his Pennsylvania driver's license and was recovering from serious injuries with the help of his mother who lives in Pennsylvania. See ECF Nos. 29 at 2, 29-3, 29-4, 29-5, 29-6.
The court notes that these years-old medical and billing records are all prior to January 24, 2023, the date on which the suit was filed in state court. See supra Part II.B.1. (explaining that Plaintiff's citizenship must be evaluated as of the date on which his Complaint was filed).
In sum, based on its review of the evidence as a whole, the court CONCLUDES that Plaintiff is a citizen of, and domiciled in, the Commonwealth of Virginia for diversity purposes, and FINDS that Removing Defendants have failed to meet their burden of establishing jurisdiction. Therefore, because Plaintiff and Defendants Hughes and Liley are all Virginia citizens, complete diversity does not exist, and this court lacks subject matter jurisdiction. Accordingly, Plaintiff's Motion to Remand, ECF No. 22, is GRANTED.
III. PLAINTIFF'S MOTION FOR ATTORNEYS' FEES
The court next addresses Plaintiff's Motion for Attorneys' Fees, where he seeks an award for the costs and expenses associated with the removal action. ECF No. 24.
It is undisputed that a court "may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of [a] removal" when issuing a remand order. 28 U.S.C. § 1447(c) (emphasis added). However, "[t]here is no automatic entitlement to" such an award. Common Cause v. Lewis, 956 F.3d 246, 256 (4th Cir. 2020) (internal citation and quotation marks omitted). " '[O]nly where the removing party lacked an objectively reasonable basis for seeking removal' " should a court award attorney's fees in this context. Id. (quoting Martin v. Franklin Capital Corp., 546 U.S. 132, 141, 126 S.Ct. 704, 163 L.Ed.2d 547 (2005)).
Plaintiff argues that, even after receiving documents establishing Plaintiff's domicile in Virginia, "[t]he Removing Defendants[ ] refus[ed] to acknowledge that Plaintiff is a Virginia citizen" which Plaintiff characterizes as "unreasonable and obstructive and . . . a waste of this [c]ourt's time and judicial resources." ECF Nos. 24 at 1, 25 at 1. Removing Defendants, however, oppose Plaintiff's Motion for Attorneys' Fees because "there is no evidence that the [Removing] Defendants removed this case in bad faith or did so to prolong the litigation." ECF No. 30 at 2.
The court agrees with Removing Defendants and declines to find that they lacked an "objectively reasonable basis for seeking removal" in this case. Lewis, 956 F.3d at 256. First, and most importantly, the court again notes there are some matters that cast doubt on Plaintiff's being domiciled in Virginia, including his failure to change his State of Legal Residence with the military, and thus resulting in his paying Pennsylvania state income taxes. See supra Part II.B. (discussing the evidence before the court). Because reasonable minds can disagree about how much weight to give the various pieces of evidence, and how the factors are weighed depends on the facts of the case, it cannot be said that Removing Defendants were acting in bad faith or without reason when asserting that Plaintiff is domiciled in the Commonwealth of Pennsylvania. See Phillips, 2007 WL 2471532, at *2 (noting that the weighing of factors is case-specific); Gambelli, 904 F. Supp. at 497 (listing factors that courts consider when determining an individual's domicile); see also supra Part II.B.
Moreover, the court finds it significant that Removing Defendants, when filing their Notice of Removal, did not have access to all the documents and information that are now part of the record. See ECF No. 29-10 at 2 (January 27, 2023, email acknowledging that "[t]here [wa]s no real way [Removing Defendants] could have known [certain information] prior to filing the notice of removal without asking [Plaintiff's counsel]"). Removing Defendant's clearly had a strategy for moving as swiftly as they did when removing the case to federal court, and the court will not fault them for this tactic. See ECF No. 1 (illustrating Removing Defendant's "snap removal" strategy); see also Spigner v. Apple Hosp. REIT, Inc., No. 3:21cv758, 2022 WL 1451397, at *5-6 (E.D. Va. Mar. 1, 2022) (Novak, J.) (upholding the "snap removal" litigation tactic). Given how quickly this all happened, there is no evidence that Removing Defendants were attempting to delay or interrupt the proceedings in any way. See Lewis, 956 F.3d at 257.
Therefore, because Removing Defendants did not lack an objectively reasonable basis for seeking removal, and there is no evidence of bad faith in their attempting to remove the action to federal court, the court DENIES Plaintiff's Motion for Attorneys' Fees, ECF No. 24.
IV. CONCLUSION
For the reasons stated above, the court FINDS that Plaintiff is a citizen of the Commonwealth of Virginia for diversity purposes. Based on this conclusion, complete diversity does not exist, and the court GRANTS Plaintiff's Motion to Remand, ECF No. 22, thus remanding this action to the Circuit Court of the City of Hampton, Virginia. However, Plaintiff's Motion for Attorneys' Fees, ECF No. 24, is DENIED.
Because the court lacks subject matter jurisdiction, it will not decide on Defendants' Motion to Dismiss, ECF No. 9, or Plaintiff's Motion to Stay or Extend Deadline for his response to Defendants' Motion to Dismiss, ECF No. 20, which will be properly considered and addressed by the circuit court on remand.
IT IS SO ORDERED.