Butler v. Pollard, 79-165-C.

• Decision Date: 13 September 1979
• Docket Number: No. 79-165-C.,79-165-C.
• Parties: Leroy BUTLER, Louie Butler, Alvin Butler, Plaintiffs, v. Olen POLLARD, James H. Mashburn, Bobby Lundry, John E. Seal, Wm. (Sonny) Coffman, Jess Price, and Board of County Commissioners of McCurtain County, State of Oklahoma, Defendants.
• Court: U.S. District Court — Eastern District of Oklahoma

482 F. Supp. 847

Leroy BUTLER, Louie Butler, Alvin Butler, Plaintiffs, v. Olen POLLARD, James H. Mashburn, Bobby Lundry, John E. Seal, Wm. (Sonny) Coffman, Jess Price, and Board of County Commissioners of McCurtain County, State of Oklahoma, Defendants.

No. 79-165-C.

United States District Court, E. D. Oklahoma.

September 13, 1979.

COPYRIGHT MATERIAL OMITTED

Joe Stamper, Antlers, Okl., for plaintiffs.

Lawrence A. G. Johnson, Tulsa, Okl., for defendants Pollard, Mashburn, Lundry and Coffman.

John E. Shipp, Idabel, Okl., for defendant Seal.

Gary L. Brock, Idabel, Okl., for defendant Price.

Alfred R. Cecil, Asst. Dist. Atty., Idabel, Okl., for defendant Bd. of County Com'rs.

DAUGHERTY, Chief Judge.

ORDER

Plaintiffs bring this action alleging that they have sustained damages as a result of the Defendants having caused water to be diverted across the Plaintiffs' lands. Plaintiffs seek as relief herein a judgment against the Defendants for actual and punitive damages. It is asserted that this Court has jurisdiction of the action pursuant to 28 U.S.C. § 1332 by reason of diversity of citizenship and amount in controversy. Plaintiffs allege that they are all citizens of California and that all of the Defendants except for John E. Seal are citizens of Oklahoma. They state that Defendant Seal is a resident of Oregon.

The action is now before the Court on Defendant Jess Price's Motion to Dismiss and Motion to Strike. Price has filed a brief and affidavit in support of his Motion to Dismiss and a brief in support of his Motion to Strike. The Plaintiffs have filed responses in opposition to Price's Motions, with a supporting brief, affidavit and exhibits.

The Court rules on Price's Motions as follows:

MOTION TO DISMISS

Price moves the Court to dismiss this action on the basis that the Court lacks jurisdiction over the subject matter and parties and that the Complaint fails to state a claim against him on which relief can be granted. The Court will consider these contentions separately.

Subject Matter Jurisdiction

Price moves to dismiss the instant action for lack of diversity of citizenship jurisdiction. He contends that there is not complete and total diversity of citizenship between the parties as he asserts that Plaintiff Louie Butler has the same state of citizenship — Oklahoma — as most of the Defendants. Price submits an affidavit from his attorney stating that Louie Butler has a mailing address at the Idabel, Oklahoma post office for his residence located in McCurtain County, Oklahoma; that he has a telephone number listed in the Idabel, Oklahoma telephone directory; and that calls placed to this telephone number will place the caller in contact with him at his residence in McCurtain County. On the basis of these facts, Price argues that Louie Butler is a citizen of Oklahoma and that this precludes there being complete diversity of citizenship between all of the parties in this case.

In opposition to Price's Motion to Dismiss, Plaintiffs contend that Louie Butler is a resident of California and submit an affidavit from Louie Butler wherein he relates numerous facts intending to show that his citizenship lies in California rather than in Oklahoma. In this affidavit, Butler states that although he owns land in McCurtain County, Oklahoma, has stayed there for considerable periods of time, and maintains a phone listed under his name in a cabin on his Oklahoma property, it is his purpose and intent to live in Los Angeles, California; that he owns and lives in a home in Los Angeles; that he is a registered voter in California and voted there in the 1978 elections; that he has a California driver's license; that he is a member of the Los Angeles local of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and receives a monthly retirement check from that union addressed to him at his Los Angeles home; that two or three years ago he directed the Idabel, Oklahoma post office to send his mail to him in Los Angeles; that he does not leave any clothing in the cabin on his Oklahoma property, but brings clothes and toilet articles with him when he comes to Oklahoma; that his vehicle has a California license; and that his family physicians and dentists are located in California.

Rule 12(d), Federal Rules of Civil Procedure, contemplates a preliminary hearing and determination of jurisdictional issues in advance of trial unless the court defers such action until the time of trial. Schramm v. Oakes, 352 F.2d 143 (Tenth Cir. 1965). As there is no statutory direction for procedure upon an issue of jurisdiction, the mode of its determination is left to the trial court. Gibbs v. Buck, 307 U.S. 66, 59 S.Ct. 725, 83 L.Ed. 1111 (1939); Sherman v. American Federation of Musicians, 588 F.2d 1313 (Tenth Cir. 1978); Schramm v. Oakes, supra; Walden v. Elrod, 72 F.R.D. 5 (W.D. Okl.1974). The trial court may gather evidence on the question of jurisdiction by affidavits or otherwise to determine the facts as they exist and based upon the evidence so obtained, decide the jurisdictional dispute. KVOS, Inc. v. Associated Press, 299 U.S. 269, 57 S.Ct. 197, 81 L.Ed. 183 (1936); Schramm v. Oakes, supra; Walden v. Elrod, supra. In the instant case, the Court finds that the affidavits submitted by the parties provide sufficient evidence for the Court to rule on the jurisdictional dispute involved in the motion now before the Court.

Diversity jurisdiction in federal courts is determined from the allegations of the complaint. Whitelock v. Leatherman, 460 F.2d 507 (Tenth Cir. 1972); Alfonso v. Hillsborough County Aviation Authority, 308 F.2d 724 (Fifth Cir. 1962); Wilson v. Pickens, 444 F.Supp. 53 (W.D.Okl.1977); Walden v. Elrod, supra. If a plaintiff's allegation of jurisdictional facts is challenged by a defendant then the plaintiff has the burden of supporting the allegations with competent proof. Thomson v. Gaskill, 315 U.S. 442, 62 S.Ct. 673, 86 L.Ed. 951 (1942); McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Wilson v. Pickens, supra; Walden v. Elrod, supra. The burden of proof in such a situation is by a preponderance of the evidence. Mid-Continent Pipe Line Co. v. Whiteley, 116 F.2d 871 (Tenth Cir. 1941); Wilson v. Pickens, supra; Walden v. Elrod, supra.

Diversity of citizenship is determined as of the time the suit is instituted. Johnston v. Cordell National Bank, 421 F.2d 1310 (Tenth Cir. 1970); Wilson v. Pickens, supra; Walden v. Elrod, supra. A diversity action should be dismissed if at any time it becomes apparent that there is a lack of diversity. Bradbury v. Dennis, 310 F.2d 73 (Tenth Cir. 1962), cert. denied, 372 U.S. 928, 83 S.Ct. 874, 9 L.Ed.2d 733 (1964); Wilson v. Pickens, supra; Walden v. Elrod, supra. With respect to the diversity jurisdiction of federal courts, "citizenship" has the same meaning as "domicile" and imports permanent residence in a particular state. Walden v. Broce Construction Co., 357 F.2d 242 (Tenth Cir. 1966); Wilson v. Pickens, supra. The two elements essential to the establishment of a new domicile are intent and some act to carry such intention into effect. Johnston v. Cordell National Bank, supra; Wilson v. Pickens, supra; Walden v. Elrod, supra. Residence alone is not the equivalent of citizenship, although the place of residence is prima facie domicile, and citizenship is not necessarily lost by protracted absence from home, where the intention to return remains. Walden v. Broce Construction Co., supra; Wilson v. Pickens, supra. Nor is mere mental fixing of citizenship sufficient to establish citizenship for purposes of federal diversity jurisdiction. Id.

The record before the Court in the instant case reveals that Plaintiff Louie Butler has apparently neither intended to establish a domicile in Oklahoma nor committed any act to carry such an intention into effect. His current residence is in California; he is a registered voter of that state and voted there in the 1978 elections; he belongs to a Los Angeles local of an international union; he has a California driver's license and vehicle registration; and his family physicians and dentists are located in California.

In view of these facts, the Court finds that the preponderance of the evidence before it indicates that Louie Butler appears to be domiciled in California and is thus a citizen of California. Accordingly, to the extent Price's Motion to Dismiss is based on his contention that Plaintiff Louie Butler is a citizen of Oklahoma and is not truly diverse from the Defendants in this case who maintain their citizenship in Oklahoma, Price's Motion is overruled subject to reconsideration at the trial if it becomes apparent that the citizenship of Louie Butler is not in fact diverse from all of the Defendants.

Failure to State a Claim

In this portion of his Motion to Dismiss, Price moves to dismiss this action for the failure of the...