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Warren v. Ficek

United States District Court, D. Montana, Billings Division

May 8, 2019

MARK M. FICEK, Defendant.



         Plaintiff Benjamin Warren (“Warren”) brings this action against Defendant Mark M. Ficek (“Ficek”) relating to a real estate transaction. (Doc. 1.)

         Presently before the Court is Ficek’s Motion to Dismiss for Lack of Diversity Jurisdiction. (Doc. 5.)

         I. BACKGROUND

         Warren alleges that he entered into a Buy-Sell Agreement with Ficek on or about February 24, 2016 for the purchase of a property located at 12555 Andrew Lane in Molt, Montana. As part of the transaction, Ficek provided Warren with an Owner’s Property Disclosure Statement, which required Ficek to disclose any adverse material facts concerning the property. Warren states that he reasonably relied upon the Disclosure Statement. Warren asserts that after he moved into the property he discovered significant issues that were not disclosed, including structural defects and substantial damage to the property. Warren alleges the structural defects and substantial damage could not have been discovered by a reasonable inspection and were not obvious to him until after he purchased the property.

         Warren brought this suit on July 19, 2018, alleging fraud in the inducement, breach of contract, unfair and deceptive trade practice, negligent misrepresentation, and breach of the implied covenant of good faith and fair dealing. Warren invoked federal jurisdiction based on diversity of citizenship. Warren pleaded that he is a citizen of Montana and that Ficek is a citizen of Idaho.

         Ficek now moves to dismiss, arguing the Court lacks subject matter jurisdiction because he is citizen and resident of Montana, and therefore, complete diversity does not exist.


         Federal courts have “original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between citizens of different States.” 28 U.S.C. § 1332(a)(1). The element of diversity of citizenship “requires complete diversity between the parties – each defendant must be a citizen of a different state from each plaintiff.” Diaz v. Davis (In re Digimarc Corp. Derivative Litig.), 549 F.3d 1223, 1234 (9th Cir. 2008). The party asserting diversity jurisdiction bears the burden of proof. Lew v. Moss, 797 F.2d 747, 749 (9th Cir. 1986).

         For purposes of diversity, a person’s citizenship is determined by his or her state of domicile, not residence. Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001). “A person’s domicile is her permanent home, where she resides with the intention to remain or to which she intends to return.” Id. Domicile is determined as of the time the lawsuit is filed. Lew, 797 F.2d at 750. The determination of a person’s domicile involves a number of factors, 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. No single factor is controlling. Id. Domicile is evaluated in terms of “objective facts,” and “statements of intent are entitled to little weight when in conflict with facts.” Id. (citing Freeman v. Northwest Acceptance Corp., 754 F.2d 553, 556 (5th Cir. 1985)).

         A defendant may move for dismissal for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1). A Rule 12(b)(1) attack may be either facial or factual. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.” Id. When considering a factual attack, the Court may look to evidence beyond the complaint “without having to convert the motion into one for summary judgment.” White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). The Court also need not presume the truthfulness of the plaintiff’s allegations. Id. “Once the moving party has converted the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction.” Savage v. Glendale Union High School, 343 F.3d 1036, 1039 n.1 (9th Cir. 2003).

         Here, there is conflicting evidence about whether Ficek is domiciled in Idaho or Montana. Ficek alleges that he is a citizen and resident of Montana. In support of his motion to dismiss he submitted an affidavit stating, “I vote in Montana, file taxes in Montana, and otherwise consider Montana my home.” (Doc. 5-1 at 2, ¶ 3.) Ficek also provided a copy of his current Montana driver’s license, which lists a Montana address. (Id. at 3.)

         In response, Warren produced evidence showing Ficek’s assertion about voting in Montana is false. Ficek’s voting record demonstrates he has not voted in Montana since 2012; he registered to vote in Idaho in 2016 (at which time affirmed Idaho residency); and he most recently voted in Idaho in 2016. (Docs. 8-1, 8-2.)

         Warren also produced evidence showing Ficek owns a home in Idaho (where he was personally served); there is no record Ficek owns any property in Montana; Ficek’s wife is a nurse and is licensed only in Idaho; Ficek and his wife have vehicles registered in Idaho; the address listed on Ficek’s Montana driver’s license is owned by a relative; and Ficek’s Montana driver’s license was not issued until after ...

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