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David v. Smith

United States District Court, W.D. Washington, Seattle

August 15, 2019

GARY C J DAVID, Plaintiff,
DAVID W SMITH, et al., Defendants.



         THIS MATTER comes before the Court on Defendants' Motion to Dismiss or Alternatively for a More Definite Statement (Dkt. No. 6) and on Plaintiff's Motion to Remand (Dkt. No. 7). Having reviewed the Motions, the Responses (Dkt. Nos. 9, 12), the Replies (Dkt. Nos. 14, 15), and all related papers, the Court GRANTS Defendants' Motion to Dismiss and DENIES Plaintiff's Motion to Remand.


         This case arises from Plaintiff's contention that 30 to 40 years ago his father-in-law stole his pension, with the missing funds now controlled by other members of the family. Beginning when he was a teenager in 1967, Plaintiff, Gary C. J. David, worked for Northern Merchandise Company (NMC) and contributed to and participated in the retirement plan offered by NMC. (Dkt. No. 1 (“Compl.”), Ex. 1 at 4-5.) In 1970, he married his wife, Patti, the daughter of Wesley Smith and Defendant Eileen Smith, and the sister of Defendant David Smith, who is married to Defendant Ellen Smith. (Compl. ¶ 8.) Plaintiff's father-in-law, Wesley Smith, purchased NMC in 1971. (Id. ¶ 9.) In 1981 NMC was sold to a national company called Mass. Merchandisers Inc. (MMI). (Id. ¶ 12; Ex. 1.) Plaintiff left the company in 1985. (Id. ¶ 13.) Wesley Smith died in 1993. (Id. ¶ 16.)

         Sometime around 2014, Wesley Smith's widow, Defendant Eileen Smith, granted power of attorney to Defendants, David and Ellen Smith, Plaintiff's brother-in-law and sister-in-law. (Id.) In December 2018, Eileen Smith moved to an assisted living facility near her son and daughter-in-law in Montana and sold her house in Washington. (Dkt. No. 12 at 5; Dkt. No. 13 Declaration of David Smith (“D. Smith Decl.”) at ¶¶ 3-6.)

         On July 17, 2014, Plaintiff turned 65 and received a letter from the IRS alerting him that he “MAY be entitled to some retirement benefits from a private employer.” (Compl. ¶17; Ex. 2 (emphasis in the original).) Based on this letter, Plaintiff began an extensive search for his pension, contacting various agencies and, in December 2017, travelling to the MMI corporate headquarters in Arkansas. (Id. ¶¶ 17-19.) Plaintiff asserts that this trip helped him “put together what [he] was already figuring out - that Wesley C. Smith misappropriated [his] missing Retirement Plan.” (Id. ¶ 19.) Plaintiff also approached David and Ellen Smith many times “for assistance” locating his pension, hoping they “could help source information from Eileen's accounts that might help [him] find [his] Retirement information.” (Id. ¶ 20.) But Plaintiff alleges they had “no intention of helping.” (Id.)

         On May 8, 2019, Plaintiff filed this action in King County Superior Court, bringing claims for conversion and fraud against Eileen, David, and Ellen Smith. (Id. ¶¶ 37-38; Dkt. No. 9 at 11.) Defendants then removed the action to this Court based on diversity of citizenship between the parties. (Dkt. No. 1.) Plaintiff now seeks to remand this action and Defendants have filed a Motion to Dismiss.


         I. Plaintiff's Motion to Remand

         Plaintiff seeks to remand this case, claiming that Defendant Eileen Smith is a citizen of Washington, not Montana where she currently lives. (Dkt. No. 7 at 3.) 28 U.S.C. § 1332(a) vests the district courts with original jurisdiction in all civil actions where the matter in controversy exceeds the sum or value of $ 75, 000, exclusive of interest and costs, and is between diverse parties. A federal court must order remand if there is any defect which causes federal jurisdiction to fail, or if there is any defect in the removal procedure. 28 U.S.C. § 1447(c). The removal statutes are construed restrictively, and any doubts about removability are resolved in favor of remanding the case to state court. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.1992). On a motion to remand, the removing defendant faces a strong presumption against removal, and bears the burden of establishing that removal was proper by a preponderance of evidence. Id. at 567; Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 403-04 (9th Cir.1996).

         Because there is no dispute that the amount in controversy exceeds $75, 000 (see Compl. at ¶ 37), nor whether there is diversity of citizenship between Plaintiff and Defendants David and Ellen Smith (Id. at ¶¶ 5-6), the only issue before the Court with respect to the remand motion is whether Defendant Eileen Smith is a citizen of Montana.

         To establish state citizenship for the purpose of diversity jurisdiction, a person must (1) be a United States citizen, and (2) be domiciled in a State. Lew v. Moss, 797 F.2d 747, 749 (9th Cir.1986). Plaintiff challenges whether Montana is Defendant Eileen Smith's domicile, which is determined by evaluating such factors as current residence, location of personal and real property, and location of family. Id. at 750. The Parties appear to agree on the relevant facts: Eileen Smith lives in Montana, her house in Washington was sold, and she now lives near her care-givers who hold her power of attorney. (Dkt. No. 7 at 4-5; Dkt. No. 15 at 7.) Plaintiff has not contradicted Defendants' assertion that Eileen Smith has no intention to move back to Washington, other than his claims that she is “very unhappy living in Montana.” (Id. at 4.) Because the record demonstrates Eileen Smith's domicile is in Montana, Plaintiff's Motion to Remand is DENIED.

         II. Defendants' Motion to Dismiss

         A. ...

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