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Snow v. Berkshire Hathaway, Inc.

United States District Court, M.D. North Carolina

April 25, 2019

MICKEY DALE SNOW, Plaintiff,
v.
BERKSHIRE HATHAWAY, INC., GREENSBORO NEWS & RECORD, LLC, DANIEL P. FINNEGAN, and DANIELLE BATTAGLIA, Defendants.

          MEMORANDUM OPINION AND ORDER

          Catherine C. Eagles, District Judge.

         Asserting he is a citizen of Florida, Plaintiff Mickey Dale Snow brought state law libel claims in this court against several defendants, including at least one North Carolina citizen, alleging each made false and misleading statements about him. Upon a motion to dismiss for lack of diversity jurisdiction, the Court allowed limited discovery as to Mr. Snow's citizenship.

         After considering the evidence, the Court finds that Mr. Snow has not met his burden of showing he is a citizen of Florida and not North Carolina. Because there is not complete diversity to support subject matter jurisdiction, the defendants' motions to dismiss will be granted.

         I. Diversity Jurisdiction

         Diversity jurisdiction is proper under 28 U.S.C. § 1332(a) only where the parties are citizens of different states. James G. Davis Constr. Corp. v. Erie Ins. Exch., 953 F.Supp.2d 607, 609 (D. Md. 2013).[1] Diversity must be “complete, ” and “no plaintiff may be a citizen of the same state as any defendant.” Id.[2] “A person is a citizen of a state only if she is a citizen of the United States and a domiciliary of that state.” Scott v. Cricket Commc'ns, LLC, 865 F.3d 189, 195 (4th Cir. 2017). Domicile is determined by presence in a state with intent to remain. See id.; Johnson v. Advance Am., 549 F.3d 932, 937 n.2 (4th Cir. 2008) (“Domicile requires physical presence, coupled with an intent to make the State a home.”).

         “Ordinarily an individual's citizenship will be determined by his place of residence, ” Sligh v. Doe, 596 F.2d 1169, 1171 n.5 (4th Cir. 1979), but not all those physically present within a state are residents. See Ecker v. Atl. Refining Co., 222 F.2d 618, 621 (4th Cir. 1955). Furthermore, “citizenship cannot be inferred from allegations of mere residence, standing alone.” Axel Johnson, Inc. v. Carroll Carolina Oil Co., 145 F.3d 660, 663 (4th Cir. 1998). A resident intends to live in a state for the time being, but a citizen has an intention to remain in the state indefinitely. Ecker, 222 F.2d at 621. Therefore, “[f]or purposes of diversity jurisdiction, residency is not sufficient to establish citizenship.” Johnson, 549 F.3d at 937 n.2; accord Scott, 865 F.3d at 195.

         “Citizenship, like the other ingredients or elements of diversity jurisdiction . . . presents a preliminary question of fact to be determined by the trial court.” Sligh, 596 F.2d at 1171 (footnotes omitted). When a party moves to dismiss under Rule 12(b)(1), the Court acts as a fact-finder “for the limited purpose of assessing disputes over allegations critical to establishing subject matter jurisdiction.” James G. Davis Constr. Corp., 953 F.Supp.2d at 609. Where, as here, the facts relevant to the determination of the Court's subject matter jurisdiction are not “inextricably intertwined” with the merits of the plaintiff's tort claim, “[t]he district court is authorized to resolve factual disputes in evaluating its subject matter jurisdiction.” Al Shimari v. CACI Premier Tech., Inc., 840 F.3d 147, 154 (4th Cir. 2016). The Court may consider “pleadings, affidavits, depositions, and even hear testimony” to determine the existence of subject-matter jurisdiction without converting the motion to one for summary judgment. James G. Davis Constr. Corp., 953 F.Supp.2d at 609.

         II. Evidence of Mr. Snow's Citizenship

         In his verified complaint filed on October 3, 2018, see Doc. 1 at 15, Mr. Snow alleged that he was a citizen of Florida, id. at ¶ 1, and that the defendants were citizens of other states. Id. at ¶¶ 2-5. He made similar allegations in his verified First Amended Complaint. Doc. 21 at ¶¶ 1-6, p. 15. The defendants do not dispute that at least one of the defendants is a citizen of North Carolina. Doc. 33 at 3; Doc. 38 at 3. They reference and submit substantial credible evidence that Mr. Snow is a citizen of North Carolina. This evidence includes:

• Filings in a North Carolina criminal case in which Mr. Snow was the defendant, including:
o An affidavit submitted in connection with a bond motion, signed by Mr. Snow on August 27, 2017, in which Mr. Snow affirmed under oath that he is a “citizen and resident of Rockingham County, North Carolina.” Doc. 45-7 at ¶ 1; see also Doc. 45-5 at ¶ 3 (defense motion to modify bond stating Mr. Snow “resides with his wife in Rockingham County”); Doc. 45-6 at 2 (memorandum of law contending Mr. Snow has “family ties, a home, and a business in Rockingham County”).
o An affidavit signed by Mr. Snow's wife on August 27, 2017, affirming under oath that she is a citizen and resident of Rockingham County, North Carolina. Doc. 45-8 at ¶¶ 1, 4.
o A September 2017 court order modifying Mr. Snow's bond at his request and finding that Mr. Snow is “a life-long resident of Rockingham County.” Doc. 33-2 at p. 3 ¶ 16.
o An appearance bond signed by Mr. Snow on December 16, 2015, and listing his address in Eden, North Carolina. Doc 33-1 at 1.
• Mr. Snow's September 2016 answer to a civil complaint in the Middle District of Florida, in which Mr. Snow denied that he was a resident of Florida and stated that he “is a resident of Rockingham ...

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