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Tribble v. Whittaker

May 2, 2006



This matter is before the court on plaintiff's motion to remand and award costs, filed May 18, 2005, on which briefing concluded August 29, 2005.


Plaintiff filed the complaint initiating this action in the Circuit Court of Putnam County, West Virginia on March 11, 2005, followed by an amended complaint on March 16, 2005. He asserts that defendant Andrew J. Whittaker, Jr., acting in loco parentis or as guardian or parent-in-fact, provided Whittaker's minor granddaughter Brandi Bragg "large sums of money, expensive automobiles and other personal property[,] and he allowed her to have unfettered access and possession of [a] home" owned by him. (Am. Compl. ¶¶ 7-10.) Plaintiff asserts that Bragg subsequently developed an open and notorious drug habit that included the intravenous use of illegal narcotics. (Am. Comp. ¶ 11.)

According to plaintiff, Bragg shared some such narcotics with Jesse Joe Tribble in the home owned by defendant on September 16, 2004, leading to Tribble's loss of consciousness. (Compl. ¶ 14.) Then, plaintiff alleges, Bragg left the home, knowing that Tribble "was severely intoxicated and ill from the use of illegal drugs." (Compl. ¶ 15.) Tribble's body was found in defendant's home the following day, on September 17, 2004. (Compl. ¶ 16.) Nearly two and one half months later, Bragg died as the result of a drug overdose. (Compl. ¶ 17.) According to the death certificate, Bragg died on December 5, 2004, at 341 Scary Creek Road, Scott Depot, Putnam County, in West Virginia. (Cert. of Death, attached as Exh. 1 to Pl. Mot.) She was 17 years of age, having been born on March 25, 1987. (Id.)

Defendant filed a notice of removal with this court on April 21, 2005, on the ground that at all times relevant to this action Bragg and defendant were residents of Virginia. (Not. of Rem. at 3.) Because plaintiff is a West Virginia citizen, defendant says, complete diversity exists, giving this court jurisdiction pursuant to 28 U.S.C. §§ 1441 and 1446. In seeking remand, plaintiff argues that defendant's removal notice is defective on its face because it avers that defendant and decedent are or were residents of Virginia, but fails to allege their citizenship or domicile. (Pl. Mot. ¶¶ 5-6.)

Plaintiff, in his motion to remand, expounds a number of factors which he argues show that defendant and Bragg were citizens of West Virginia at the relevant time. Defendant is the registered owner of several parcels of real property located in Putnam County, West Virginia, as evidenced by deeds dated as early as February 1995. (Pl. Mot. at 4-5, see Exhs. 4-6, 8, 10-12.) Secretary of State records show that he continues to act as the organizer, president, manager, and/or agent for service of process for several registered companies, many located in St. Albans, West Virginia and many owning several parcels of real property in Putnam County at the time of the filing of this action. Defendant agreed to accept service of process for these companies and provided addresses at which to receive notice in Scott Depot, West Virginia and in St. Albans, West Virginia. (Pl. Mot. at 4-5, see Exhs. 7, 9, 13-16, 19.) Additionally, plaintiff and his wife own a townhouse and lots in Daniels, West Virginia. (Pl. Mot. at 4-5, see Exhs. 17-18.)

Plaintiff also notes that Bragg's certificate of death, signed by the chief medical examiner on December 21, 2004, and for which the informant is identified as Jack Whittaker*fn1 , reflects that she was a resident of West Virginia. (Attached as Exh. 1 to Pl. Mot.) Her residence is shown as 111 Rose Hills Acres, Scott Depot, Putnam County, West Virginia. (Id.)

Defendant was appointed administrator of Bragg's estate by the Putnam County Commission on March 14, 2005, by order of the Deputy Fiduciary Supervisor of Putnam County showing Bragg as a resident of Putnam County and reading in part as follows:

On personal/written motion of Andrew J. Whittaker Jr.[], and the proper affidavit having been filed Andrew J. Whittaker Jr. Of P.O. Box 33, 320 Deer Run Estates, Rocky Gap, VA, 24366 is by the Commission duly appointed Administrator of the estate of Brandi LaSha' Bragg SS# XXX-XX-8989 who died 12/05/2004 late of said County.

In the office of the Fiduciary Supervisor o[f] Putnam County, West Virginia, acting on behalf of the Putnam County Commission, in vacation, this 14th day of March, 2005, came Andrew J. Whittaker Jr. Administrator of the Estate of Brandi LaSha' Bragg, SS # XXX-XX-8989, who died intestate on December 5th, a resident of Putnam County. (Attached as Exh. 2 to Pl. Mot.)

After removal, defendant filed in response to the remand motion an affidavit, dated June 1, 2005, stating that he purchased on September 22, 2004, a residence in Bland County, Virginia, at which he has since resided, and at which Bragg resided with him until the time of her death. (Attached as Exh. 1 to Def. Resp.) It is noted that the residence is deeded to defendant and Christina Jo Bush, whose relationship with defendant is not explained, as joint tenants with a right of survivorship. (Exh. 2 to Def. Resp.) Ms. Bush also is listed as a joint party with defendant for a bank account opened by defendant in Virginia in August 2004. (Exh. 8 to Def. Resp.) Plaintiff argues that defendant remains married to Jewell Whittaker. (Pl. Reply at 4.)

Defendant says that his primary care physicians all are located in Virginia, that he has had a motor vehicle operator's permit issued by the Commonwealth of Virginia since March 10, 2005, and that he has purchased at least three businesses in that state. (Def. Exh. 1.) Defendant avers that he was the legal guardian of Bragg, that he "is taking the necessary measures and intend[s] to probate" her estate in Virginia (Def. Exh. 1); and that "there will be no ancillary administration of . . . Bragg's estate in the Circuit Court of Putnam County, West Virginia" (Def. Supp. Resp.). Bragg's death certificate was amended on June 22, 2005, to show her as a resident of Rocky Gap, Bland County, Virginia, which defendant says was done to "confirm" that Bragg was a resident of Bland County, Virginia when she died. (Def. Supp. Resp.) He further relies on Bragg's having sought medical treatment in Virginia on September 23, 2004 (Def. Resp. at 2), but Bragg's patient records of that date from Wythe County Community Hospital show her address as Scott Depot, West Virginia (attached as Exh. 4 to Def. Resp.).

Plaintiff filed a reply memorandum on June 10, 2005, attaching a printout of Bragg's obituary, as it appeared in the Charleston Daily Mail on December 23, 2004, from the Charleston Newspapers Internet site.*fn2 (Attached as Exh. A to Pl. Reply.) The obituary reflects that Bragg was a resident of Scott Depot, that she attended Hurricane High School (located in Putnam County, West Virginia) and Summers County High School (located in Summers County, West Virginia), and that she was a member of the Hurricane Church of God. Listed among her survivors were "maternal grandparents, Jack and Jewell Ward Whittaker of Scott Depot."

In his supplemental reply, filed August 29, 2005, plaintiff refers to an order of the Circuit Court of Raleigh County, West Virginia, under which defendant was sentenced to home incarceration pursuant to W.Va. Code ยง 61-11B-4 after having pled and been found guilty of driving under the influence. (Attached as Exh. A to Pl. Supp. Reply.) Though the order is undated, it appears that defendant's sentence was in effect from August 3, 2005, through August 8, 2005. (Pl. Supp. Reply, Exh. A at 4.) The order reflects that defendant was residing in Daniels, West Virginia at the time of sentencing, and that he would be allowed to leave his residence to work at his office in Mount Hope, West Virginia. (Id.) Defendant states, however, that he was permitted to serve his period of ...

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