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M.S. v. Murray

United States District Court, N.D. West Virginia

September 23, 2019

M.S., individually and M.S., as next friend of the minor child, S.M., Plaintiff,
v.
JONATHAN MURRAY a/k/a JON MURRAY, MURRAY ENERGY CORPORATION and MURRAY AMERICAN RIVER TOWING, INC., Defendants.

          MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF'S MOTION TO REMAND, DENYING REQUEST FOR COSTS AND EXPENSES, DENYING MOTION TO STRIKE AND MOTION TO DISMISS WITHOUT PREJUDICE

          FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE.

         I. Procedural History

         The plaintiff in this civil action, M.S., individually, and as next friend of the minor child, S.M., filed a complaint (ECF No. 1-1) against defendants Jonathan Murray (hereinafter “Murray”), Murray Energy Corporation (hereinafter “MEC”), and Murray American River Towing (hereinafter “MART”) in the Circuit Court of Ohio County, West Virginia on July 22, 2019. ECF No. 1-1. That same day, the defendants removed this civil action to this Court. ECF No. 1. Prior to the filing of the plaintiff's complaint, defendant Murray filed a complaint against the plaintiff in the Northern District of West Virginia on July 19, 2019 in a case captioned as Murray v. Saville, Civil Action No. 5:19CV222.

         II. Background

         The plaintiff alleges the following claims: intentional infliction of emotional distress due to sexual harassment (Count I); sexual battery of a minor child (Count II); sexual assault of a minor child (Count III); false imprisonment (Count IV); sexual assault in the first degree, in violation of W.Va. Code § 61-8b-3 (Count V); sexual assault in the second degree, in violation of W.Va. Code § 61-8b-4 (Count VI); sexual assault in the third degree, in violation of W.Va. Code § 61-8b-5 (Count VII); sexual abuse in the first degree, in violation of W.Va. Code § 61-8b-7 (VIII); sexual abuse in the third degree, in violation of W.Va. Code § 61-8b-9 (Count IX); sexual abuse by a parent, guardian, or custodian or person in position of trust to a child, in violation of W.Va. Code § 61-8D-5 (Count X); incest, in violation of W.Va. Code § 61-8-12 (Count XI); respondeat superior liability against defendants MEC and MART (Count XII); negligence against defendants MEC and MART (Count XIII); negligent retention, hiring and supervision against MEC and MART (Count XIV); loss of filial consortium against all defendants (Count XV); loss of parental consortium against all defendants (Count XVI); strict liability for violation of West Virginia statutes against all defendants (Count XVII); punitive damages against defendant Murray (Count XVIII); and punitive damages against MEC and MART (Count XIX). Id. at 9-22.

         In defendant Murray's notice of removal, defendant Murray asserts that this Court has jurisdiction over the matter pursuant to 28 U.S.C. § 1332 because the parties are of diverse citizenship and the amount in controversy exceeds $75, 000.00, exclusive of interest and costs.[1] ECF No. 1 at 2.

         Plaintiff M.S. then filed a motion to remand and a memorandum in support, in which she asserts that complete diversity does not exist in this case. ECF No. 18-1. Specifically, plaintiff M.S. states that defendant Murray was and is still domiciled in West Virginia since he resides in West Virginia. Id. at 7-12. Plaintiff M.S. references: (1) defendant Murray's social media profiles that stated his past residences (see ECF Nos. 18-11 and 18-12); (2) defendant Murray's statements in an earlier case; (3) defendant Murray's failure to update his residence with the family court; (4) defendant Murray's ownership of real property in West Virginia and lack of ownership of real property in Ohio; and (5) defendant Murray's failure to change the title or registration of any of his motor vehicles. Id. at 5, 10-14. Plaintiff M.S. states that although defendant Murray may provide a new address in Ohio to demonstrate that he has established a physical presence in Ohio, he does not possess the requisite intent, as evidenced by his actions, to be considered domiciled in Ohio. Id. at 12-14. Plaintiff M.S. also attaches an affidavit from one of defendant Murray's neighbors in West Virginia stating that she has seen him “coming and going from his home as recently as around July, 25, 2019.” ECF No. 18-10. Lastly, plaintiff M.S. contends that defendant Murray does not have an objectively reasonable basis for removal and therefore, the Court should award the plaintiff reasonable attorney's fees and costs. Id. at 15.

         Defendants MEC and MART then filed a joint response in opposition to the plaintiff's motion to remand. ECF No. 24. Defendants MEC and MART first assert that defendant Murray's motive for his change in domicile is irrelevant and that generally, a party may change citizenship or domicile for the sole purpose of bringing an action in federal court on the basis of diversity of citizenship, provided that the change is real and the party has a bona fide intention of becoming a citizen of the State. Id. at 4-5. Defendants MEC and MART state that: (1) defendant Murray's home is in Ohio; (2) defendant Murray has an Ohio driver's license; (3) defendant Murray works in Ohio; (4) defendant Murray's parents reside in Ohio; (5) defendant Murray has done his banking in Ohio since 2001; (6) before the instant complaint was filed, defendant Murray moved his mailing address to Ohio; (7) defendant Murray attends church in Ohio; (8) defendant Murray has been a member of the Hazen Masonic Lodge in Ohio for 25 years and a member of the Boy Scout Troops in Ohio since 2013; and (9) defendant Murray has had Columbus Blue Jackets season tickets for the last five seasons. Id. at 6. Defendants MEC and MART assert that the following are irrelevant factors for domicile: (1) outdated social media; (2) prior, outdated litigation materials; and (3) ownership of real property. Id. at 6-9.

         Defendant Murray also filed a response in opposition to the plaintiff's motion to remand. ECF No. 25. Defendant Murray first states that he is domiciled in Ohio and intends to remain domiciled in Ohio. Id. at 2-8. Moreover, defendant Murray states, among other things, that: (1) as a resident of Ohio, he previously filed a complaint against the plaintiff; (2) he could not transfer his vehicles to Ohio until he received copies of the titles from the banks; (3) he possessed an Ohio driver's license before the filing of this instant civil action; (4) he rents a cottage in Ohio; (5) he entered into a contract to purchase real property in Ohio; and (6) he has been attempting to sell his residence in West Virginia. Id. at 8-10. Defendant Murray further notes that while the plaintiff's affidavit (ECF No. 18-10) indicates that he went to his West Virginia residence, it does not contain evidence that he spent the night at his West Virginia residence. Id. at 10. Defendant Murray also attaches affidavits from neighbors in Ohio who state that Murray lives in a cottage in Bethesda, Ohio and that, as far as they know, Murray has spent every night in that cottage since mid-July 2019. Id. Defendant Murray next states that he did not have the responsibility to update his address with the family court since he does not have jurisdiction over his children. Id. at 10-11. Lastly, defendant Murray states that payment of attorney's fees are not warranted since he is domiciled in Ohio and has no intent to return to West Virginia. Id. at 11-12.

         Plaintiff M.S. then filed an omnibus reply. ECF No. 28. Plaintiff M.S. first states that the defendants have not offered this Court sufficient evidence that demonstrates defendant Murray's intent to be domiciled in Ohio. Id. at 6. The plaintiff states that defendant Murray allegedly leased an apartment and procured a motor vehicle operator's license at the time of the complaint, remaining in close proximity to his former home. Id. at 7. The plaintiff asserts that, at best, defendant Murray's actions show a definite and sincere intention to make a place one's home at some time in the future, which is not enough to make that place his present domicile. Id. at 8. Lastly, plaintiff M.S. asserts that defendant Murray's motive for moving is only irrelevant if a bona fide establishment of a new domicile is proven, and that he has not demonstrated such a bona fide establishment. Id. at 9. The plaintiff specifically contends that defendant Murray moved to Ohio only to establish federal jurisdiction. Id.

         Now before this Court is the plaintiff's fully briefed motion to remand. For the reasons set forth below, the plaintiff's motion to remand (ECF No. 18) is GRANTED.

         III. Discussion

         There is no dispute as to the amount in controversy. The only issue in dispute is whether the defendants have met their burden in establishing the diversity of citizenship requirement under 28 U.S.C. § 1332(a).

         The analysis properly begins with the principle that the burden of establishing that the requirements of removal is on the removing party. See Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97 (1921) (“If a removal is effected, the plaintiff may, by a motion to remand, plea, or answer, take issue with the statements in the petition. If he does, the issues so arising must be heard and determined by the District Court, and at the hearing the petitioning defendant must take and carry the burden of proof, he being the actor in the removal proceeding.” (citations omitted)); In re Blackwater Security Consulting, LLC, 460 F.3d 576, 583 (4th Cir. 2006); Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994) (“The burden of establishing federal jurisdiction is placed upon the party seeking removal.”); 7 Charles Alan Wright & Arthur R. Miller, et al., Federal Practice and Procedure § 3739 (“It is also well settled under the case law that the burden is on the party seeking to preserve the district court's jurisdiction, typically the defendant, to show the requirements for removal have been met.”). Importantly, the removing party has the burden of establishing the jurisdictional facts by a ...


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