The opinion of the court was delivered by: Murphy Chief District Judge
This action is before the Court on the Motion for Remand brought by Plaintiff Doris J. Cassens (Doc. 9). For the following reasons, the motion is GRANTED.
Doris J. Cassens married Defendant Albert D. Cassens in 1979. During their engagement, they entered into a prenuptial agreement defining the property Doris Cassens would receive in the event Albert Cassens died or the marriage were dissolved. In 2003 Doris Cassens and Albert Cassens separated, and Albert Cassens currently resides in Montana with his daughter, Defendant Kay Sharon Cassens.
Doris Cassens originally filed this action in January 2006 in the Circuit Court for the Twentieth Judicial Circuit, Monroe County, Illinois. In Count I of the operative complaint in this case, she seeks a judicial declaration that the prenuptial agreement she entered with Albert Cassens is void on the grounds that it was procured through fraud and is unconscionable; in the alternative, she seeks a declaration that certain marital property is not subject to the agreement and that Albert Cassens breached the agreement. Count II seeks preliminary and permanent injunctive relief to prevent Albert Cassens and others acting in concert with him from dissipating the assets of the marital estate. Count III asserts a claim for common-law fraud against Albert Cassens, alleging that he fraudulently induced Doris Cassens to enter the prenuptial agreement. Finally, Count IV asserts a claim for alienation of affection against Kay Sharon Cassens.
Defendants have removed the action to this Court on the basis of federal diversity jurisdiction. See 28 U.S.C. § 1332; Id. § 1441. Plaintiff has moved for remand of the action to Illinois state court for lack of federal subject matter jurisdiction. The issue for the Court is whether the claims asserted in this case fall within the so-called "domestic relations" exception to federal diversity jurisdiction. For the reasons stated infra, the Court concludes that they do.
Removal based on diversity requires that the parties be of diverse state citizenship and that the amount in controversy exceed $75,000, exclusive of interest and costs. See Rubel v. Pfizer Inc., 361 F.3d 1016, 1017 (7th Cir. 2004); Littleton v. Shelter Ins. Co., No. 99-912-GPM, 2000 WL 356408, at *1 (S.D. Ill. Mar. 9, 2000). The party seeking removal has the burden of establishing federal jurisdiction. See Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993). "Courts should interpret the removal statute narrowly and presume that the plaintiff may choose his or her forum." Id. Put another way, there is a strong presumption in favor of remand. See Jones v. General Tire & Rubber Co., 541 F.2d 660, 664 (7th Cir. 1976).
At the outset, the Court notes that the record discloses some question as to whether complete diversity of citizenship is present in this case. As discussed, federal diversity jurisdiction requires that in most instances parties to an action be of diverse state citizenship, that is, no plaintiff may be a citizen of the same state as any defendant. See Carden v. Arkoma Assocs., 494 U.S. 185, 187 (1990) (citing Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267 (1806)); F. & H.R. Farman-Farmaian Consulting Eng'rs Firm v. Harza Eng'g Co., 882 F.2d 281, 284 (7th Cir. 1989). "Citizenship" for diversity purposes is determined of course by a party's domicile, see Gilbert v. David, 235 U.S. 561, 569 (1915); Pollution Control Indus. of Am., Inc. v. Van Gundy, 21 F.3d 152, 155 n.4 (7th Cir. 1994), which means the state where a party is physically present with an intent to remain there indefinitely. See Perry v. Pogemiller, 16 F.3d 138, 140 (7th Cir. 1993); Pederson v. Chicago Transit Auth., No. 96 C 1588, 1996 WL 328039, at *1 (N.D. Ill. June 11, 1996).
In this case, Doris Cassens is of course a citizen of Illinois. Her operative complaint alleges that she and Albert Cassens "lived together as husband and wife until August 21, 2003," when Kay Cassens "removed Albert to the State of Montana" (Doc. 3, ¶ 4). Doris Cassens alleges also that "[s]ince August 21, 2003, Kay has prevented Doris from communicating with Albert" (Id. ¶ 5). Doris Cassens' motion for remand asserts that "Doris and Albert were married in 1979 and are still married today. Doris and Albert lived together until August 2003 when Kay Cassens . . . , Albert's daughter[,] removed Albert to Montana without Doris' knowledge or consent. Kay has kept Albert from communicating with Doris since that time" (Doc. 9, ¶ 5).*fn1 The clear import of Doris Cassens' statements is that Albert Cassens' current residence in Montana is not voluntary. An involuntary "removal" such as Doris Cassens alleges does not change Albert Cassens' domicile for diversity purposes. See Dakuras v. Edwards, 312 F.3d 256, 258 (7th Cir. 2002) ("[I]nvoluntary removal does not change one's domicile."). Put another way, "since domicile is a voluntary status, a forcible change in a person's state of residence does not alter his domicile." Sullivan v. Freeman, 944 F.2d 334, 337 (7th Cir. 1991); see also 13B Charles Alan Wright, Arthur R. Miller, Edward H. Cooper & Richard D. Freer, Federal Practice & Procedure § 3613 (3d ed. 1998 & Supp. 2005) ("[R]esidence in a place under . . . physical compulsion . . . normally will not result in the acquisition of a domicile at that location.") (collecting cases). If Albert Cassens is residing in Montana involuntarily, as Doris Cassens' submissions to the Court suggest, then his domicile remains Illinois, defeating complete diversity of citizenship.*fn2
Furthermore, even assuming for the sake of argument that Albert Cassens is not in Montana under compulsion, as Doris Cassens seems to contend, the mere fact that he has resided there since 2003 is insufficient to establish that he is domiciled there. "[A] protracted absence from one's domicile does not establish a new domicile." Gravdahl v. Conwell, No. 00 C 0579, 2002 WL 398599, at *2 (N.D. Ill. Mar. 14, 2002) (citing Seaboard Fin. Co. v. Davis, 276 F. Supp. 507, 510 (N.D. Ill. 1976)). A domicile, once established, continues until it is superseded by a new domicile. See Sadat v. Mertes, 615 F.2d 1176, 1181 (7th Cir. 1980). Domicile must be determined from the totality of the circumstances, and courts generally focus on such indicia as residence, voting practices, location of personal and real property, bank and brokerage accounts, membership in associations, place of employment, driver's license, auto registration, and payment of taxes. See id. at 1181-82; see also Abboud v. Northwest Home Servs. Inc., No. 90 C 141, 1990 WL 93345, at *2 (N.D. Ill. June 20, 1990). No single factor can determine citizenship for diversity purposes. See, e.g., Galva Foundry Co. v. Heiden, 924 F.2d 729, 730 (7th Cir. 1991) (changing voter registration, driver's license, or tax status is not enough in itself to confer citizenship for diversity purposes because it would be too easy to manipulate the court's jurisdiction). In this instance, Defendants, who have the burden of proving the place of Albert Cassens' domicile, see Klement v. West Irving Die Casting Co., No. 84 C 3910, 1986 WL 4130, at *1 (N.D. Ill. Mar. 28, 1986), have failed to put into the record any of the evidence that would establish whether Albert Cassens has established a new domicile in Montana.
Nonetheless, even if Albert Cassens in fact is domiciled in Montana, an issue the parties have not disputed, see Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d 536, 543 (7th Cir. 2006), the Court concludes that federal diversity jurisdiction does not exist in this case for an additional reason, namely, that Doris Cassens' claims against Albert Cassens clearly fall within the domestic relations exception to diversity jurisdiction. The domestic relations exception holds generally that "[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States." Ankenbrandt v. Richards, 504 U.S. 689, 692 (1992) (quoting Ex parte Burrus, 136 U.S. 586, 593-94 (1890)); see also Mansell v. Mansell, 490 U.S. 581, 587 (1989) ("[D]omestic relations are preeminently matters of state law."); Moore v. Sims, 442 U.S. 415, 435 (1979) ("Family relations are a traditional area of state concern."); Newman v. Indiana, 129 F.3d 937, 939 (7th Cir. 1997) ("The subject of domestic relations . . . is the primary responsibility of the state courts, administering state law, rather than the federal courts.").
In Lloyd v. Loeffler, 694 F.2d 489 (7th Cir. 1982), the court explained the policy considerations underlying the domestic relations exception to diversity jurisdiction:
At [the exception's] core are certain types of cases, well illustrated by divorce, that the federal courts are not, as a matter of fact, competent tribunals to handle. The typical divorce decree provides for alimony payable in installments until the wife remarries, and if there are children it will provide for custody, visitation rights, and child support payments as well. These remedies -- alimony, custody, visitation, and child support -- often entail continuing judicial supervision of a volatile family situation. The federal courts are not well suited to this task. They are not local institutions, they do not have staffs of social workers, and there is too little commonality between family ...