United States District Court, W.D. Washington, Seattle
ORDER DENYING PLAINTIFF'S MOTION TO REMAND;
GRANTING DEFENDANTS' MOTION TO DISMISS
J. PECHMAN, UNITED STATES DISTRICT JUDGE
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.
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.)
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.)
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.”
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.
Plaintiff's Motion to Remand
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).
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.
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
Defendants' Motion to Dismiss