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Harrell v. Elizabeth F. Ferguson Revocable Living Trust, 2:17-cv-2693 TLN DB PS. (2019)

Court: District Court, E.D. California Number: infdco20190116911 Visitors: 4
Filed: Jan. 14, 2019
Latest Update: Jan. 14, 2019
Summary: ORDER DEBORAH BARNES , Magistrate Judge . Plaintiff, Peter Harrell, is proceeding in this action pro se. This matter was referred to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. 636(b)(1). On December 3, 2018, defendants filed an answer and counterclaim. (ECF No. 9.) On December 20, 2018, plaintiff filed a request for an extension of time to February 15, 2019, to respond to defendants' answer and counterclaim. (ECF No. 14.) Plaintiff explains that receipt of the
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ORDER

Plaintiff, Peter Harrell, is proceeding in this action pro se. This matter was referred to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). On December 3, 2018, defendants filed an answer and counterclaim. (ECF No. 9.) On December 20, 2018, plaintiff filed a request for an extension of time to February 15, 2019, to respond to defendants' answer and counterclaim. (ECF No. 14.) Plaintiff explains that receipt of the answer was delayed because it was served "to his out-of-state address" and that plaintiff needs additional time to perform legal research. (Id. at 1.) Good cause appearing, plaintiff's request will be granted.

Plaintiff's filing, however, raises concern with respect to plaintiff's domicile. Plaintiff has alleged that the court has diversity jurisdiction over this action because defendants are citizens of California while plaintiff "is a citizen of Oregon[.]" (Compl. (ECF No. 1 at 1-2.) The complaint lists plaintiff's address as a Post Office box in Ashland, Oregon. (Id. at 1.)

However, the complaint also alleges that this action concerns a dispute over real property located in Siskiyou County, California. (Id. at 2.) Plaintiff "has openly, continuously, notoriously, uninterruptedly, and in a manner hostile to the holders of title thereto, occupied and used" the property "since at least May of 2011[.]" (Id.) Plaintiff paid taxes for that property on November 19, 2015. (Id. at 3.) Plaintiff also "owns the property . . . immediately adjacent to the real property which is the subject of this action[.]" (Id.) And the properties are "located on the residential street[.]" (Id.)

A "natural person's state citizenship is . . . determined by her state of domicile, not her state of residence." Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001). "[A] person is domiciled in a location where he or she has established a fixed habitation or abode in a particular place, and intends to remain there permanently or indefinitely." Lew v. Moss, 797 F.2d 747, 749-50 (9th Cir. 1986).

[D]etermination of an individual's domicile involves a number of factors (no single factor controlling), including: current residence, voting registration and voting practices, location of personal and real property, location of brokerage and bank accounts, location of spouse and family, membership in unions and other organizations, place of employment or business, driver's license and automobile registration, and payment of taxes.

Id. at 750.

Accordingly, plaintiff will be ordered to file a supplement brief addressing the state of plaintiff's domicile. In this supplemental brief plaintiff shall identify the state of plaintiff's:

1. Current residence;

2. Voting registration;

3. Personal and real property;

4. Bank accounts;

5. Spouse and family;

6. Membership in unions and other organizations;

7. Employment or business;

8. Driver's license;

9. Automobile registration; and

10. List the state(s) in which plaintiff filed tax returns for each of the last five years. Plaintiff shall also answer: (1) whether either property allegedly owned by plaintiff in Hornbrook, California has a dwelling house, trailer, or building thereon; and (2) if so, has plaintiff inhabited the dwelling house, trailer, or building for a period of more than 180 days within the prior three years.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's December 20, 2018 motion for an extension of time (ECF No. 14) is granted;

2. On or before February 15, 2019, plaintiff shall file a response to defendants' counterclaim; and

3. On or before February 15, 2019, plaintiff shall file a supplemental brief concerning plaintiff's domicile and addressing the issues identified above.

Source:  Leagle

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