Bloom v. Library Corp.

• Decision Date: 30 June 2015
• Docket Number: Civil Action No. 3:15–CV–11.
• Court: U.S. District Court — Northern District of West Virginia
• Parties: Joshua BLOOM, Plaintiff, v. The LIBRARY CORPORATION, and Annette Murphy, Defendants.

112 F.Supp.3d 498

Joshua BLOOM, Plaintiff,

v.The LIBRARY CORPORATION, and Annette Murphy, Defendants.

Civil Action No. 3:15–CV–11.

United States District Court, N.D. West Virginia, Martinsburg.

Signed June 30, 2015.

Peter A. Pentony, F. Samuel Byrer, P.L.L.C., Charles Town, WV, for Plaintiff.

WM. Richard McCune, Jr., Alex A. Tsiatsos, WM. Richard McCune, Jr., P.L.L.C., Martinsburg, WV, for Defendants.

MEMORANDUM OPINION AND ORDER DENYING MOTION TO REMAND

GINA M. GROH, Chief Judge.

Currently pending before the Court is Plaintiff Joshua Bloom's Motion to Remand, [ECF 4], filed on February 25, 2015. Bloom argues that Defendant Annette Murphy is domiciled in West Virginia and therefore, pursuant to the forum defendant rule, this Court lacks diversity of citizenship jurisdiction and must remand this case to the Circuit Court of Berkeley County, West Virginia. Murphy asserts that she is a Florida citizen and that valid diversity jurisdiction exists. For the following reasons, the Court finds that Murphy is a Florida citizen. Therefore, the Plaintiff's motion is DENIED.

I. Background

Bloom originally brought this civil action against Murphy and her Co–Defendant, the Library Corporation ("TLC"), by way of a complaint filed in the Circuit Court of Berkeley County, West Virginia, on November 7, 2014. In the complaint, Bloom alleged that he entered into an employment agreement with TLC in early 2007. In reliance upon that agreement, he and his wife resigned from their jobs and moved from New York to West Virginia, where they purchased a home. Bloom averred that he performed well as TLC's chief technology officer and contributed to TLC's success during his approximately seven years with the company. However, Bloom alleged that on November 8, 2013, Murphy—TLC's co-founder, president, chief executive officer ("CEO") and chairman of the board—informed him that he was fired. In his complaint, Bloom asserted that TLC and Murphy committed violations of the West Virginia Wage Payment and Collection Act, and were also liable for breach of contract and intentional infliction of emotional distress.

It appears that the Defendants were not served with a copy of the original complaint. On November 26, 2014, Bloom filed an amended complaint. The amended complaint contained the same allegations as the original complaint, but also included an attachment: a copy of what Bloom alleged to be an employment agreement entered into by Bloom and TLC. According to Murphy, she was served with the amended complaint on or around January 23, 2015, but TLC was not served.

Murphy filed a notice of removal with this Court on February 10, 2015, pursuant to 28 U.S.C. § 1441. Murphy alleged that this Court possessed valid diversity of citizenship jurisdiction under 28 U.S.C. § 1332, because Bloom, a citizen of Pennsylvania, and Murphy, a citizen of a Florida, were not citizens of the same state, and because the amount in controversy exceeded the sum of $75,000. See § 1332(a). Murphy further argued that, although her Co–Defendant, TLC, was then and is now a Maryland corporation with a principal place of business in West Virginia, and is therefore considered to be a citizen of both Maryland and West Virginia, the forum defendant rule did not preclude Murphy's removal of this case because at the time of removal TLC had not been properly joined and served as a defendant under § 1441(b)(2). In arguing in support of his motion to remand, Bloom does not contest the deficiencies of his service of TLC. Bloom argues that Murphy is domiciled in West Virginia, not Florida, and thus, as this Court sits in West Virginia and Murphy is a properly joined and served defendant, this civil action cannot be removed under § 1332(a). See § 1441(b)(2).

II. Applicable Law

Under 28 U.S.C. § 1441, a defendant may remove a civil action from state court to federal court under certain circumstances. To do so, a defendant must file a notice of removal with the appropriate district court, containing "a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action." 28 U.S.C. § 1446(a). A federal court is limited to exercising the authority granted to it under Article III of the Constitution or by federal statute. In re Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir.1998). Because federal courts have limited subject matter jurisdiction, there is no presumption that a court has jurisdiction. Pinkley, Inc. v. City of Frederick, 191 F.3d 394, 399 (4th Cir.1999). Therefore, a party is required to allege facts essential to show jurisdiction in the pleadings. McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936). As removal jurisdiction raises significant federalism concerns, federal courts must strictly construe removal statutes. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108–09, 61 S.Ct. 868, 85 L.Ed. 1214 (1941). In seeking to remove an action to federal court, "[t]he burden of demonstrating jurisdiction resides with ‘the party seeking removal.’ " Md. Stadium Auth. v. Ellerbe Becket Inc., 407 F.3d 255, 260 (4th Cir.2005) (quoting Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir.1994) ).

Under 28 U.S.C. § 1332, federal courts have original jurisdiction over cases where "the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between citizens of different states." § 1332(a). Section 1332 requires complete diversity of citizenship; that is, the citizenship of each plaintiff must be diverse from the citizenship of each and every defendant. Cent. W. Va. Energy Co. v. Mountain State Carbon, LLC, 636 F.3d 101, 103 (4th Cir.2011) (citing Caterpillar, Inc. v. Lewis, 519 U.S. 61, 68, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996) ). When reviewing the record upon consideration of a motion to remand, federal courts must determine whether valid jurisdiction exists by "look[ing] at the case as of the time it was filed in state court." Wis. Dep't of Corr. v. Schacht, 524 U.S. 381, 390, 118 S.Ct. 2047, 141 L.Ed.2d 364 (1998). Under 28 U.S.C. § 1441(b)(2), commonly known as the forum defendant rule, "[a] civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a)... may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought."

An individual is a citizen of the state in which he or she is domiciled. Johnson v. Advance Am., 549 F.3d 932, 937 n. 2 (4th Cir.2008). "Domicile requires physical presence, coupled with an intent to make the State a home." Id. Residence and domicile are distinct concepts; an individual can reside in one state but be domiciled elsewhere. Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989). Thus, in and of itself, an allegation of residency does not establish citizenship in a state; it is domicile that is determinative of citizenship. Johnson, 549 F.3d at 937 n. 2 ; see also Axel Johnson, Inc. v. Carroll Carolina Oil Co., 145 F.3d 660, 663 (4th Cir.1998) ("[S]tate citizenship for purposes of diversity jurisdiction depends not on residence, but on national citizenship and domicile."). "For federal diversity jurisdiction purposes, a corporation is a citizen of the states in which it has been incorporated and in which it has its principal place of business." Cent. W. Va. Energy, 636 F.3d at 102. The Supreme Court defines principal place of business to mean "the place where the corporation's high level officers direct, control, and coordinate the corporation's activities." Hertz Corp. v. Friend, 559 U.S. 77, 80, 130 S.Ct. 1181, 175 L.Ed.2d 1029 (2010).

Courts determine a party's domicile on a case by case basis, considering all of the circumstances surrounding an individual's situation. 13E Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3612 (3d ed.2014). Courts may consider the following factors in making that determination: "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's license and automobile registration; [and] payment of taxes." Id.; Frye v. S. Lithoplate, Inc., Civil Action No. 3:13–CV–63, 2013 WL 6246780, at *2 (N.D.W.Va. Dec. 3, 2013). No one of these factors is dispositive. Frye, 2013 WL 6246780, at *2 (citing Wright & Miller, supra, § 3612 (3d ed.2014)).

When the parties' dispute concerning a motion to remand is focused upon an alleged change in domicile, a court is well-advised to be cognizant of certain default rules and presumptions. See Vandevander v. Jimenez, 2011 U.S. Dist. LEXIS 139904, *5–17 (N.D.W.Va. Dec. 5, 2011). For instance, in determining the essential elements of domicile, courts should afford little weight to a party's "statements of intention," when those statements conflict with the facts. Webb v. Nolan, 361 F.Supp. 418, 421 (M.D.N.C.1972), aff'd per curiam, 484 F.2d 1049 (4th Cir.1973). But see Hamilton v. Accu–Tek, 13 F.Supp.2d 366, 370 (E.D.N.Y.1998) ("Declarations of intent by the person whose domicile is in question are given heavy, but not conclusive, weight."). Of the aforementioned factors, courts have found a party's voter registration and voting practices to be of particular importance. See Griffin v. Matthews, 310 F.Supp. 341, 343 (M.D.N.C.1969) ( " ‘Voting raises a presumption that the voter is a citizen in the state in which he votes,’ and the presumption must be rebutted by evidence showing a clear intention that his citizenship is otherwise.") (quoting Messick v. S. Pa. Bus Co., 59 F.Supp. 799, 801 (E.D.Pa.1945) ), aff'd per curiam, 423 F.2d 272 (4th Cir.1970). "When a person moves from the state of domicile to a new...