MEMORANDUM OPINION AND ORDER
ANDREW L. BRASHER, District Judge.
This matter comes before the Court on Defendant Michael Brown's motion to dismiss for lack of subject-matter jurisdiction. (Doc. 23). Christopher Beamon ("Plaintiff") filed the initial action and alleged three state-law violations against Michael Brown ("Defendant") over a motor vehicle accident that occurred in Auburn, Lee County, Alabama. (Doc. 1). Plaintiff invoked diversity jurisdiction under 28 U.S.C. § 1332 and the parties agree, as they must, that for this Court to have diversity jurisdiction, the Plaintiff and Defendants must be completely diverse, meaning no defendant can reside in the same state as Plaintiff.
Plaintiff is a citizen of the state of Alabama. Although Plaintiff states in his complaint that Defendant Brown is also a resident of Alabama, Plaintiff now claims that Defendant Brown is a Georgia resident. As explained below, Plaintiff has not achieved complete diversity. Upon consideration, Defendant Brown's motion to dismiss is GRANTED.
STANDARD
The standard of review for a motion to dismiss for lack of subject-matter jurisdiction is the same as one for lack of legal sufficiency. See Pennsylvania Nat. Mut. Cas. Ins. Co. v. St. Catherine of Siena Par., 2014 WL 1048520, at *1 (S.D. Ala. Mar. 18, 2014). The one key difference is that "in dismissing a case for lack of subject-matter jurisdiction, a district court may consider facts outside of the pleadings." Muhammad v. HSBC Bank USA, N.A., 399 F. App'x 460, 462 (11th Cir. 2010). District courts have original jurisdiction over civil actions where the amount in controversy exceeds $75,000 and where the parties are citizens of different States. See 28 U.S.C. § 1332(a)(1).
Plaintiffs are responsible for alleging facts that if true, show federal subject-matter jurisdiction exists over their case. See Travaglio v. Am. Express Co., 735 F.3d 1266, 1268 (11th Cir. 2013) (citing Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994)). When a plaintiff invokes diversity jurisdiction, he must include the citizenship of each party so the court can ascertain whether the plaintiff and defendant are citizens of different states. See id. (citing Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir. 1998)). Citizenship is determined by two elements, (1) physical presence in a state and (2) the intention to remain in the state indefinitely. See Miss. Band of Choctaw Indians v. Holy-field, 490 U.S. 30, 48 (1989); Scoggins v. Pollock, 727 F.2d 1025, 1026 (11th Cir.1984). Relevant evidence is collected from the circumstances existing at the time of the complaint and before. See Shawnee Terminal R. Co., Inc. v. J.E. Estes Wood Co., Inc., 2010 WL 5239248, *2 (S.D. Ala. 2010).
BACKGROUND
On May 8, 2019, Plaintiff filed a complaint against Defendant Brown alleging three state-law violations resulting from a traffic accident. See Doc. 1. Plaintiff also sought to join his insurance company, GEICO. Defendant Brown filed a motion to dismiss on August 15, 2019, alleging that Plaintiff could not invoke diversity jurisdiction because they are both residents of Alabama. See Doc. 23. Indeed, in the first three paragraphs of Plaintiff's complaint, he anomalously invokes this Court's diversity jurisdiction and states that both he and Defendant Brown are citizens of Alabama. See Doc. 1 ¶1-3.
Over a month later, on September 17, 2019, Plaintiff filed a response arguing that he had misstated Defendant's citizenship in the original complaint, arguing that Defendant is a citizen of Georgia, and asking the Court to allow an amendment of the complaint. See Doc. 29 at 1-3. The grounds for Plaintiff's new proposed allegation of citizenship are that Defendant Brown has a Georgia driver's license, his vehicle is registered in Georgia, he is registered to vote in Georgia, and his Facebook page states that he lives in Macon, Georgia. See id. at 3-5.
On October 1, 2019, Defendant Brown filed a reply to Plaintiff's response averring that he is a citizen of Alabama. See Doc. 33. As of the date the complaint was filed, Defendant Brown had been living in Alabama for three years. See id. at 2-3. The complaint was served to Defendant at his Birmingham, Alabama address where he lives and works full-time. Finally, Plaintiff filed a response to Defendant's reply in which he calls Defendant's evidence of long-term residential intent "assertions" and states that the truly determinative factors are Defendant's driver's license and car registration. See Doc. 35 at 1-2.
DISCUSSION
Subject-matter jurisdiction in this action turns on whether Brown is a citizen of Georgia or Alabama. For the purpose of subject-matter jurisdiction, citizenship is determined by (1) physical presence within a state and (2) the mental intent to make a home there indefinitely. See McDonald v. Equitable Life Ins. Co. of Iowa, 13 F.Supp.2d 1279, 1281 (M.D. Ala. 1998). There is no dispute that Defendant Brown lived in Alabama prior to, during, and after the accident and the filing of this lawsuit. The second issue, mental intent, is more difficult to prove. Here, however, overwhelming evidence indicates that Defendant intends to remain in Alabama indefinitely. Accordingly, he is a citizen of Alabama, and the Court lacks subject-matter jurisdiction over this lawsuit.
"For adults, domicile1 is established by physical presence in a place in connection with a certain state of mind concerning one's intent to remain there." Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330, 1341 (11th Cir. 2011) (citing Miss. Band of Choctaw Indians, 490 U.S. at 48). Physical presence is not dispositive because one may temporarily reside in a location but retain domicile elsewhere if there is no intent to remain in the state of residence indefinitely. See id. The law does presume, however, that a person is a citizen of the state in which that person resides. See McDonald v. Equitable Life Ins. Co. of Iowa, 13 F.Supp.2d 1279, 1281 (M.D. Ala. July 30, 1998) (citing District of Columbia v. Murphy, 314 U.S. 441, 455 (1941); Stine v. Moore, 213 F.2d 446, 448 (5th Cir.1954)). Despite certain ties to Georgia, the record reflects that Defendant Brown made Alabama his home by residing in it for three uninterrupted years, as well as securing a job, an apartment, and a fiancé in Alabama.
Although Plaintiff acknowledges that Brown maintains a Birmingham, Alabama residence, he argues that Brown has substantial ties to his birth-state of Georgia that indicate he does not intend to reside permanently in Alabama. Specifically, Plaintiff argues that Brown holds an active driver's license in the state of Georgia that lists 105 Brown Ridge in Macon, Georgia as his address, see Doc. 30 at 4, that he was registered to vote in Georgia, that his vehicle was registered in the state of Georgia, see Doc. 30 at 6, 12, and that he listed Macon, Georgia as the placed he lived on his Facebook page. Plaintiff explains that Alabama law requires new residents to obtain an Alabama driver's license and register their vehicle in the state within 30 days. See Ala. Code § 32-6-1(a); Ala. Code § 40-12-262. Plaintiff alleges that Brown's failure to comply with these statutes, as well as his presentation as a Georgia native in civic and social capacities through his voter registration and Facebook page, are proof that Georgia is in fact Brown's home.
The overwhelming evidence, however, indicates that Brown lives in Alabama with the intention to remain indefinitely. Brown is a recent graduate of Auburn University and currently resides in Birmingham, where he has lived and worked full-time with his fiancé since graduating in August of 2018. See Doc. 33 at 2. He asserts that he has not lived in Georgia since the summer of 2016. See Doc. 33-1 at 2. The address listed on his driver's license is his childhood home where his parents live, and Defendant Brown states that he has no intention to return to that home. See id. at 5. He explains that he has held both a full-time job at Gateway Pharmaceuticals and a part-time job at Neighborhood Pharmaceuticals—both in Birmingham. See id. at 3. When Gateway permanently closed, he began working full-time for Neighborhood and was employed there at the time the complaint was filed. See id. In short, job changes did not prompt a move back to Georgia. He states in his affidavit that he and his fiancé do not intend to leave the state.
Defendant explains that he maintained his Georgia license and registration out of convenience because his license was not expired, and he was unaware of any law requiring that he update his license and registration with his current address. See id. at 5. To the extent that Brown's social media indicates he lives in Georgia, Defendant asserts that too is merely a failure to update information.
While courts may consider voting registration, licensure, and vehicle registration, the totality of the circumstances reigns supreme. See McDonald, 13 F. Supp. at 1281. Here, current habitation and employment, a fiancé, a lease, and a three-year period of residence are all strong evidence that Brown resides in Alabama with the intent to remain indefinitely. The record before the Court also indicates that Brown has not lived in Georgia for over three years. Defendant adequately explains that his ties to Georgia are remnants of his childhood residence there—they are not an indication that he plans to move back. This is particularly credible given that he is now an independent adult with his own apartment and a fiancé, and there is nothing in the record to indicate that he intends to move back in with his parents. Thus, Defendant's motion is due to be granted.
CONCLUSION
The Defendant's Motion to Dismiss for Lack of Subject-matter Jurisdiction is GRANTED. (Doc. 23). Defendant GEICO's motion for Extension of Time to opt out (Doc. 22) is DENIED as moot. This suit is DISMISSED without prejudice for lack of subject-matter jurisdiction.
DONE and ORDERED.
CIVIL APPEALS JURISDICTION CHECKLIST
1. Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited by statute:
(a) Appeals from final orders pursuant to 28 U.S.C. § 1291: Final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under 28 U.S.C. § 158, generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1368 (11th Cir. 1983) (citing Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 S.Ct. 911 (1945)). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. 28 U.S.C. § 636(b); Perez-Priego v. Alachua County Clerk of Court, 148 F.3d 1272 (11th Cir. 1998). However, under 28 U.S.C. § 636(c)(3), the Courts of Appeals have jurisdiction over an appeal from a final judgment entered by a magistrate judge, but only if the parties consented to the magistrate's jurisdiction. McNab v. J & J Marine, Inc., 240 F.3d 1326, 1327-28 (11th Cir. 2001).
(b) In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b). Williams v. Bishop, 732 F.2d 885, 885-86 (11th Cir. 1984). A judgment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 201, 108 S.Ct. 1717, 1721-22, 100 L.Ed.2d 178 (1988); LaChance v. Duffy's Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).
(c) Appeals pursuant to 28 U.S.C. § 1292(a): Under this section, appeals are permitted from the following types of orders:
i. Orders granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions; However, interlocutory appeals from orders denying temporary restraining orders are not permitted. McDougald v. Jenson, 786 F.2d 1465, 1472-73 (11th Cir. 1986);
ii. Orders appointing receivers or refusing to wind up receiverships; and
iii. Orders determining the rights and liabilities of parties in admiralty cases.
(d) Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: The certification specified in 28 U.S.C. § 1292(b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable.
(e) Appeals pursuant to judicially created exceptions to the finality rule: Limited exceptions are discussed in cases including, but not limited to: Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 S.Ct. 1528 (1949); Atlantic Fed. Sav. & Loan Ass'n v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371, 376 (11th Cir. 1989); Gillespie v. United States Steel Corp., 379 U.S. 148, 157, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964).
2. Time for Filing: The timely filing of a notice of appeal is mandatory and jurisdictional. Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P. 4(a) and (c) set the following time limits:
(a) Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after the order or judgment appealed from is entered. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Special filing provisions for inmates are discussed below.
(b) Fed.R.App.P. 4(a)(3): "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later."
(c) Fed.R.App.P. 4(a)(4): If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion.
(d) Fed.R.App.P. 4(a)(5) and 4(a)(6): Under certain limited circumstances, the district court may extend or reopen the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time to file an appeal may be reopened if the district court finds, upon motion, that the following conditions are satisfied: the moving party did not receive notice of the entry of the judgment or order within 21 days after entry; the motion is filed within 180 days after the judgment or order is entered or within 14 days after the moving party receives notice, whichever is earlier; and no party would be prejudiced by the reopening.
(e) Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.
3. Format of the notice of appeal: Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of appeal must be signed by the appellant.
4. Effect of a notice of appeal: A district court lacks jurisdiction, i.e., authority, to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).
