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Kemph v. Mica Creek-Sagamore Capital Partners

United States District Court, N.D. Illinois, Eastern Division

September 22, 2014

STEPHEN A. KEMPH, JR., Plaintiff,
v.
MICA CREEK-SAGAMORE CAPITAL PARTNERS (D/B/A

MEMORANDUM OPINION AND ORDER

ELAINE E. BUCKLO, District Judge.

Plaintiff Stephen A. Kemph, Jr.'s motion to remand based on this Court's lack of subject-matter jurisdiction is granted for the reasons stated below.

I.

On December 27, 2013, Plaintiff filed a ten-count complaint against Defendant MCS Capital Partners ("MCS") in the Circuit Court of Cook County, alleging various violations of the Illinois Wage Payment and Collection Act, 820 ILCS 115/14, as well as breach of contract stemming from a $762, 000 bonus that Plaintiff claims MCS is withholding from him. Compl., Ex. B to Removal Not. [#1]. On January 17, 2014, MCS removed the case to federal court pursuant to 28 U.S.C. §§ 1332, 1441, and 1446. Removal Not. [#1]. Presently, the parties' dispute concerns the citizenship of one of the MCS partners, Stephen DeLuca. Plaintiff argues that this Court lacks jurisdiction over this matter because, like Plaintiff, Stephen DeLuca, is a citizen of Illinois, thereby defeating complete diversity. MCS argues that Mr. DeLuca is a citizen of Arizona, thereby fulfilling the requirements of 28 U.S.C. § 1332(a)(1).

II.

Pursuant to 28 U.S.C. § 1441, a defendant may remove a state court action to federal court if the federal court would have had original jurisdiction over the action. 28 U.S.C. § 1441. A federal court has original jurisdiction where diversity of citizenship exists among all parties and the amount in controversy exceeds $75, 000. 28 U.S.C. § 1332(a)(1).

"The mandate of limited federal jurisdiction must be honored by all." Hart v. Terminex Internat'l, 336 F.3d 541, 542 (7th Cir. 2003). The Seventh Circuit has been clear that it is my "non-delegable duty to police the limits of federal jurisdiction with meticulous care and to be particularly alert for jurisdictional problems in diversity cases in which one or more of the parties is neither an individual nor a corporation." Id. (quoting Market Street Asscs. Ltd. v. Frey, 941 F.2d 588, 590 (7th Cir. 1991)). Both parties acknowledge that "the citizenship of the parties at commencement of the lawsuit governs under § 1332." Miller v. Fryzel, No. 12-2068, 499 Fex.Appx, 601, 603 (7th Cir. Jan. 14, 2013).

"Citizenship for the purposes of diversity jurisdiction is domicile, and domicile is the place one intends to remain." Dakuras v. Edwards, 312 F.3d 256, 258 (7th Cir. 2002). "Domicile is where a person intends to live over the long run." Heinen v. Northrop Grumman Corp., 671 F.3d 669, 670 (7th Cir. 2012). That is, "citizenship for the purpose of 28 U.S.C. § 1332 depends on domicile rather than residence." Id. "[D]omicile is a person's legal home, the permanent residence of a person or the place to which he [or she] intends to return even though he [or she] may actually reside elsewhere." Koch v. Koch, 450 F.3d 703, 712 n. 7 (7th Cir. 2006) (quoting Black's Law Dictionary 484 (6th Ed. 1990)).

The Seventh Circuit has long acknowledged that ascertaining a financially well-off individual's domicile in "this age of second homes and speedy transportation, " can be difficult. See Galva Foundry Co. v. Heiden, 924 F.2d 729, 730 (7th Cir. 1991) (holding that defendant remained a citizen of Illinois despite the steps he took to move to Florida). For complex cases, courts must "glean intent from the following factors: current residence, voting registration and voting practices, location of personal and real property, location of financial accounts, membership in unions and other associations, place of employment, driver's license and automobile registration, and tax payments." Midwest Transit, Inc. v. Hicks, No. 03-1227, 79 Fed.Appx. 205, 208 (7th Cir. Oct. 17, 2003); 24 Hour Fitness USA, Inc. v. Bally Total Fitness Holding Corp., No. 08 CV 3853, 2008 WL 4671748, * 3 (N.D. Ill. Oct. 21, 2008) (Lefkow, J.) ("While no individual factor is dispositive in determining domicile, courts rely on a variety of factors in their analyses, including current residence, location of belongings and personal property, voter registration, driver's license and vehicle registrations, place of employment, presence of family members, and extent of social involvement in the surrounding community, among others.").

"When facts relevant to subject-matter jurisdiction are disputed, " the party asserting jurisdiction "must establish those facts by a preponderance of the evidence." Miller, 499 Fed.Appx. at 603. Finally, "[w]e must resolve genuine doubts about removal in favor of state court jurisdiction." Northeastern Rural Elec. Membership Corp. v. Wabash Valley Power Ass'n, 707 F.3d 883, 893 (7th Cir. 2013).

II.

The analysis of Mr. DeLuca's domicile is no easy task given that he is a man who maintains strong personal ties to New Jersey, the state where he grew up; Arizona, where he currently resides; Illinois, the domicile of his spouse; and Utah, where he vacations frequently throughout the year. DeLuca Dep. 322:13-323:2. To aid this Court in its determination of Mr. DeLuca's domicile, both parties have produced prodigious amounts of data related to Mr. and Mrs. DeLuca's personal and professional lives, presumably pursuant to the Seventh Circuit's direction that when a party's citizenship is contested, his "entire course of conduct may be taken into account, " because "[i]t is not enough to simply establish physical presence, but in order to turn residence in fact into a domicile in law the party must show, by some objective act, his intention to maintain the residency indefinitely." Perry v. Pogemiller, 16 F.3d 138, 140 (7th Cir. 1993).

Mr. DeLuca's Residence in Arizona

Mr. DeLuca admits that he was a resident of Illinois from November 2011 until mid-January 2012 when he moved to Arizona. S. DeLuca Dec. [#15] at ¶ 6. While the number of days he is present in Arizona exceeds the number of days he spends in Illinois each year, the facts ...


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