Computer People v. Computer Dimensions Intern., Inc., Civ. A. No. 85-886-B.

• Decision Date: 21 July 1986
• Docket Number: Civ. A. No. 85-886-B.
• Citation: 638 F. Supp. 1293
• Parties: The COMPUTER PEOPLE, INC. v. COMPUTER DIMENSIONS INTERNATIONAL, INC., et al.
• Court: U.S. District Court — Middle District of Louisiana

638 F. Supp. 1293

The COMPUTER PEOPLE, INC. v. COMPUTER DIMENSIONS INTERNATIONAL, INC., et al.

Civ. A. No. 85-886-B.

United States District Court, M.D. Louisiana.

July 21, 1986.

Anthony M. Fazzio, Fazzio & Saitta, Lafayette, La. for plaintiffs.

Claude F. Reynaud, Breazeale, Sachse & Wilson, Baton Rouge, La. for defendants.

POLOZOLA, District Judge.

The Computer People, Inc. ("Computer People") and four of its shareholders, David Graf, Sr., David Graf, Jr., Virginia Graf, and Elizabeth Graf filed this suit against Computer Dimensions International, Inc. ("Computer Dimensions") and Jerome Vitt seeking the return of the purchase price of certain computers sold by Computer Dimensions to Computer People and compensatory damages for breach of contract and damage to the value of Computer People stock. The suit was filed originally in the Sixteenth Judicial District Court, St. Mary Parish, Louisiana, and was timely removed to the United States District Court for the Western District of Louisiana. The suit was then transferred to this court pursuant to 28 U.S.C. § 1404. This matter is now before the court on plaintiff's motion to remand. The court finds the motion to remand should be granted.

Jurisdiction on removal originally was based on diversity of citizenship under 28 U.S.C. § 1332. No diversity of citizenship is shown on the face of the petition. The plaintiff David Graf, Jr. and both defendants are alleged to be citizens of the State of Texas. However, the defendants contend that although Graf's residence changed in August of 1984 when he moved from Louisiana to Texas, his intent was to remain a citizen of Louisiana.

Domicile depends on the concurrence of two factors: residence and the intent to reside indefinitely in a particular place. Texas v. Florida, 306 U.S. 398, 424, 59 S.Ct. 563, 576, 83 L.Ed. 817 (1939); Stine v. Moore, 213 F.2d 446, 448 (5th Cir.1954). The place where a person lives is taken to be his proper domicile until the evidence establishes the contrary. District of Columbia v. Murphy, 314 U.S. 441, 455, 62 S.Ct. 303, 309-11, 86 L.Ed. 329 (1941). The factors to be considered in determining domicile, as set forth by the Supreme Court in Murphy, include the following:

1. Whether or not an individual votes where he claims domicile;

2. The manner in which an individual lives, taken in connection with his station in life, i.e., whether he rents or buys a home;

3. Whether his family and dependents have moved to the new residence;

4. Whether an individual's belongings have been moved to the new residence;

5. One's relationships with churches, clubs, and investments in the new residence;

6. Whether or not a place of abode is retained in the old state of residence;

7. Whether or not investments in local property or enterprise attach one to the former residence;

8. Whether one retains affiliations with professional, religious and fraternal life of the former community; and

9. What domicile is claimed for tax purposes.

Other factors which the courts have considered include the state where one registers his automobile and obtains a driver's license. United States v. Scott, 472 F.Supp. 1073 (D.C.Ill.1979).

After considering the above factors and the evidence presented in this case, it is clear that David Graf, Jr. established a residence in Texas with the intent of remaining there indefinitely. Thus, the court finds David Graf, Jr. to be a citizen of the State of Texas. Graf, a single man, moved to Dallas, Texas, with all of his personal belongings. He works for a Texas corporation. He is registered to vote in Texas, maintains a Texas driver's license, and his car is registered in Texas. Graf has established relationships with a church and a club in Texas. He also owns a commercial recording studio in Texas, and his personal checking account and automobile loan are with Texas banks. His personal physician lives in Texas. All of Graf's social contacts are in Texas. Graf has never owned real property in Louisiana, has no residence here, and has severed his ties with this state. The mere fact that members of his family are prominent citizens of Morgan City, Louisiana, and that he has a savings account and a loan with a Morgan City bank cannot, without more, establish an intent on his part to return to Louisiana as contended by the defendants.

Thus, this suit was removed improvidently and without jurisdiction based on the grounds alleged in the original petition for removal. There is simply no complete diversity between all the plaintiffs and all the defendants as required by Strawbridge v. Curtiss, 3 Cranch 267, 2 L.Ed. 435 (1806). However, after this motion to remand was filed, the defendants filed an amended removal petition in which they contend, as an alternate basis for removal, that the claims of the plaintiffs are separate and independent from each other. Removal of an entire case is proper under 28 U.S.C. § 1441(c) when a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action. Thus, if the claims of the Louisiana plaintiffs are separate and independent from the claims of David Graf, Jr., the entire suit would be removable despite the lack of complete diversity.

In American Fire & Casualty Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702 (1951), the Supreme Court held that a single plaintiff's claims against multiple defendants were not separate and independent where there was a "single wrong to plaintiff, for which relief is sought, arising from an interlocked series of transactions." Finn, 341 U.S. at 14, 71 S.Ct. at 540. Professors Wright, Miller and Cooper state that the logic of Finn "supports the argument that removal is not available when a number of plaintiffs join their claims against a single defendant arising from a common wrong allegedly committed by the latter." 14A C. Wright, A. Miller, & E. Cooper, Federal Practice & Procedure § 3724, at pp. 368-369 (2d Ed.1985) (emphasis added).

The defendants contend that Finn does not bar removal under the facts of this case because there are multiple plaintiffs involved asserting different causes of action. In support of...