United States District Court, D. Colorado
DAVID SHAEFFER, M.D., an individual; AMBER REISS-HOLT, M.D., an individual; and THE PAGOSA MEDICAL GROUP, LLC, a Colorado limited liability company, Plaintiff,
RYAN WALLACE, an individual, Defendant.
ORDER TO REMAND
BROOKE JACKSON UNITED STATES DISTRICT JUDGE
case was originally filed in the District Court of Archuleta
County, Colorado (No. 2018CV30022). Defendant Ryan Wallace
removed the case to this Court based on diversity
jurisdiction pursuant to 28 U.S.C. §1332(a). ECF No. 1.
The case is before the Court on plaintiffs' motion to
remand. ECF No. 18. For the reasons stated herein, the motion
to remand is GRANTED.
Colorado citizens, filed an action in Colorado state court on
March 12, 2018 against Defendant Ryan Wallace, alleging
breach of fiduciary duty, fraud and conversion in a
partnership dispute. On May 25, 2018, defendant removed the
case to this court pursuant to 28 U.S.C. §§ 1332(a)
& 1441(a), alleging that diversity of citizenship exists
because contrary to plaintiffs' allegations, defendant is
not a citizen of Colorado. Instead, defendant “claims
St.Thomas in the U.S. Virgin Islands as his place of
residency, ” and when in the continental United States,
“spends the majority of his time in Kansas.” ECF
No. 1 at ¶ 15.
filed a motion to remand, ECF No. 18, alleging that defendant
was indeed domiciled in Pagosa Springs, CO throughout his
relationship with plaintiffs, and that he had not changed his
domicile prior to the filing of this lawsuit. ECF No. 18 at
3. Dr. Shaeffer filed an affidavit with this motion
describing his relationship with defendant in Colorado, and
statements defendant made to him about his intentions to
remain in Colorado. ECF No. 18-2. Defendant filed a response
opposing the petition for remand, ECF No. 19, and attached a
declaration stating that though he purchased property in
Pagosa Springs in 2017 and lived there, he never intended to
stay there. He considers the U.S. Virgin Islands his primary
and permanent home, and even if the Court finds he
established a domicile in Colorado, his domicile had changed
back to the U.S. Virgin Islands by the time the case was
removed. ECF No. 19 at 2. Plaintiffs filed a reply, ECF No.
20, doubling down on defendant's ties to Colorado.
Because plaintiffs and defendant painted such different
pictures of the life Mr. Wallace established in Colorado in
2017, or didn't, I ordered an evidentiary hearing to
assess credibility. On December 14, 2018, both Mr. Shaeffer
and Mr. Wallace testified before the Court in this
evidentiary hearing. This motion has been fully briefed and
is ripe for review.
courts have original jurisdiction over all civil actions
between citizens of different states and in which the amount
in controversy exceeds $75, 000. 28 U.S.C. § 1332(a)(1).
Diversity exists when no plaintiff and no defendant are
citizens of the same state. Middleton v. Stephenson,
749 F.3d 1197, 1200 (10th Cir. 2014). The Territory of the
Virgin Islands, a United States Territory, qualifies as a
“state” for purposes of the diversity
jurisdiction statute. Brown v. Francis, 75 F.3d 860,
865 (3d Cir. 1996) (citing 28 U.S.C. § 1332(d)). A case
is properly removed to federal court on the basis of
diversity jurisdiction if the jurisdictional requirements
exist at the time of removal. See Pfeiffer v. Hartford
Fire Ins. Co., 929 F.2d 1484, 1488 (10th Cir. 1991)
(citing Pullman Co. v. Jenkins, 305 U.S. 534, 537
(1939)) (“[t]he propriety of removal is judged on the
complaint as it stands at the time of the removal”).
The party invoking diversity jurisdiction bears the burden of
proving its existence by a preponderance of the evidence.
Middleton v. Stephenson, 749 F.3d 1197, 1200 (10th
case of natural persons, state citizenship for purposes of 28
U.S.C. § 1332 is the equivalent of domicile. Wallace
v. HealthOne, 79 F.Supp.2d 1230, 1233 (D. Colo. 2000).
“is the combination of physical presence in a location
and an intent to remain there indefinitely.”
Martinez v. Martinez, 62 Fed.Appx. 309, 313 (10th
Cir. 2003) (citing Mississippi Band of Choctaw
Indians v. Holyfield, 490 U.S. 30, 48 (1989).
“Mere mental fixing of citizenship is not sufficient.
What is in another man's mind must be determined by what
he does as well as by what he says.” Id. In
determining a person's domicile for
diversity-jurisdiction purposes, a district court should
consider the totality of the circumstances:
It's an all-things-considered approach, and any number of
factors might shed light on the subject in any given case.
See, e.g., Wright et al., supra, §
3612, at 536-41 (listing “the party's current
residence; voter registration and voting practices; situs 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 license and automobile registration;
payment of taxes; as well as several other aspects of human
life and activity”)
Middleton, 749 F.3d at 1201.
person establishes a domicile, a presumption arises that his
domicile remains the same. Middleton, 749 F.3d at
1200 (citing Mitchell v. United States, 88 U.S. 350,
353 (1874)). “But that presumption is a rebuttable one,
and the party seeking to rebut it bears only a burden of
production - not persuasion. In other words, the party
seeking to rebut the presumption need only produce
sufficient evidence suggesting that domicile has changed; the
party need not prove it.” Middleton,
749 F.3d at 1200 (emphasis in the original).
Mr. Wallace's Domicile Upon Moving to ...