United States District Court, S.D. West Virginia, Charleston
CHRISTINA JENKINS, Administratrix of the Estate of JOHNATHAN STEWART, Plaintiff,
LIFE CHANGERS OUTREACH, and BRADLEY WHITEHEAD, Defendants.
MEMORANDUM OPINION AND ORDER
T. Copenhaver, Jr. Senior United States District Judge.
is plaintiff's motion to remand, filed October 14, 2019.
civil action, originally filed in the Circuit Court of Logan
County, West Virginia, concerns the April 16, 2019 death of
Johnathan Stewart (“Stewart”). The complaint
alleges that prior to his death, Stewart had joined a
12-month addiction treatment program run by defendant Life
Changers Outreach (“Life Changers”). Compl.
¶¶ 4-6. During his participation in the 12-month
program, he allegedly received counseling from a
“licensed minister, ” defendant Bradley Whitehead
(“Whitehead”). Id. ¶ 6. On or about
April 15, 2019, Whitehead invited Stewart to his house before
a graduation ceremony celebrating Stewart's completion of
the program, during which time they both allegedly used
“illicit drugs.” Id. ¶ 7. Later
that night or early the next morning, Stewart “suffered
a reaction from the illicit drugs” that required
immediate attention, but Whitehead waited until approximately
7:00 a.m. to finally call 911 dispatch. Id.
¶¶ 8-9. By the time help arrived, Stewart was
already dead. Id. ¶ 9.
August 30, 2019, plaintiff Christina Jenkins
(“Jenkins”), a resident of North Carolina, filed
suit in the Circuit Court of Logan County as the
administratrix of the estate of Stewart, her son. The
complaint names Life Changers and Whitehead as defendants.
Changers, a Tennessee corporation, was served a copy of the
summons and complaint on September 12, 2019, after which it
filed a notice of removal on October 10, 2019. Plaintiff
moved to remand, arguing that because Whitehead and Stewart
are West Virginia residents, plaintiff did not comply with
the diversity of citizenship requirement under 28 U.S. Code
§ 1441(b)(2). See Pl.'s Mot. Remand 2-3. In
response, Life Changers argues that Whitehead is a Kentucky
citizen, attaching a copy of Whitehead's Kentucky
driver's license and a copy of his completed 2017 Form
W-4, Employee's Withholding Allowance Certificate
(“W-4”) that he submitted to his employer for
withholding federal income tax. On November 22, 2019,
Whitehead filed a notice that he joins in and consents to
courts are courts of limited jurisdiction. They possess only
that power authorized by Constitution and statute, which is
not to be expanded by judicial decree.” Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)
(internal citations omitted). “Removal jurisdiction is
to be construed narrowly, and when jurisdiction is doubtful,
remand is proper.” Caufield v. EMC Mortg.
Corp., 803 F.Supp.2d 519, 529 (S.D. W.Va. 2011) (citing
Mulcahey v. Columbia Organic Chemicals Co.
Inc., 29 F.3d 148, 151 (4th Cir. 1994)).
court is vested with original jurisdiction of all actions
between citizens of different states when the amount in
controversy exceeds $75, 000. 28 U.S.C. § 1332(a)(1);
Rosmer v. Pfizer, 263 F.3d 110, 123 (4th Cir. 2001).
However, “[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.” 28 U.S.C. §
citizenship for purposes of diversity jurisdiction depends
not on residence, but on national citizenship and domicile,
and the existence of such citizenship cannot be inferred from
allegations of mere residence, standing alone.”
Johnson v. Advance Am., 549 F.3d 932, 940 (4th Cir.
2008) (alteration in original) (quoting Axel Johnson,
Inc. v. Carroll Carolina Oil Co., 145 F.3d 660, 663 (4th
Cir. 1998)). “[D]omicile is established by physical
presence in a place in connection with a certain state of
mind concerning one's intent to remain there.”
Mississippi Band of Choctaw Indians v. Holyfield,
490 U.S. 30, 48 (1989). The Fourth Circuit assesses domicile
based on various factors, including “voter
registration; current residence; the location of real and
personal property; location of bank and brokerage accounts;
membership in clubs, churches, or other associations; place
of employment or business; driver's license and
automobile registration; and the state to which a person pays
taxes.” Scott v. Cricket Commc'ns, LLC,
865 F.3d 189, 195 (4th Cir. 2017). In evaluating the
parties' domicile, “complete diversity between the
plaintiffs and the defendants must exist at the time the
complaint is filed.” Martinez v. Duke
Energy Corp., 130 Fed.Appx. 629, 634 (4th Cir.
to the allegations in the complaint, the administratrix
Jenkins is a resident of North Carolina, Life Changers is a
resident of Tennessee, and Whitehead is a resident of West
Virginia. Compl. ¶¶ 1-3; Not. Removal ¶ 4. As
the legal representative of the decedent Stewart's
estate, however, plaintiff is “deemed to be a citizen
only of the same State as the decedent.” 28 U.S.C.
§ 1332(c)(2). Attached to plaintiff's motion to
remand is Stewart's death certificate, which indicates
that he was a West Virginia resident at the time of his
death. Pl.'s Mot. Remand, Ex. A. Because plaintiff is a
resident of West Virginia under § 1332(c)(2) and the
complaint alleges that Whitehead is a resident of West
Virginia, plaintiff contends that there is no diversity of
citizenship to warrant removal.
Changers argues that Whitehead is domiciled in Kentucky, not
West Virginia. In its response and supplemental response to
the motion to remand, Life Changers attaches a copy of a 2017
W-4 showing Whitehead's home address is in Kentucky and
Whitehead's Kentucky driver's license issued on
August 1, 2019. See Resp., Ex. B; Suppl. Resp., Ex. B.
Indeed,, Plaintiff's motion admits that “Mr.
Whitehead left West Virginia prior to the filing of this
civil action.” Pl.'s Mot. Remand 3. The only
materials provided by plaintiff supporting Whitehead's
alleged West Virginia citizenship is proof that Whitehead was
served through the West Virginia Secretary of State.
Id., Ex. C. Yet, plaintiff provides no case law to
support the assertion that proof of service is enough to
establish a party's domicile. Moreover, plaintiff never
filed a reply to address how copies of Whitehead's W-4
and driver's license affect his domicile.
on the driver's license and W-4, the court finds that
Whitehead began to be a citizen of Kentucky before this
action was filed in state court and remains a citizen of
Kentucky. See Scott, 865 F.3d at 195; Ward v.
Walker, 725 F.Supp.2d 506, 510 (D.Md.2010) (driver's
license bears on question of citizenship).
complete diversity to exist, Life Changers must also be a
citizen of a state other than West Virginia. A corporation is
a citizen of both the state where it is incorporated and the
state where it has its principal place of business. 28 U.S.C.
§ 1332(c)(1). The notice of removal asserts that Life
Changers is a foreign corporation with its principal place of
business in Tennessee. Not. Removal ¶ 4.c. Inasmuch as
plaintiff does not ...