Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Nyamtsu v. Melgar

United States District Court, Fifth Circuit

December 2, 2013

YULIYA NYAMTSU, et al., Plaintiffs,
ANGEL G. MELGAR, et al., Defendants.


GRAY H. MILLER, District Judge.

Pending before the court is a motion to remand filed by plaintiffs Yuliya Nyamtsu, Individually, as Representative of the Estate of Aleksandr Nyamtsu ("Alex"), and as Next Friend on behalf of A.N. and V.N., their minor children ("Yuliya"), and Dmitry Purkhalo ("Dmitry") (collectively, the "plaintiffs"). Dkt. 9. On November 21, 2013, the court held an evidentiary hearing on this matter.[1] After considering the motion, response, documentary and testimonial evidence of record, and applicable law, the plaintiffs' motion to remand (Dkt. 9) is DENIED.


On July 12, 2012, Alex was driving a tractor-trailer in Louisiana under the authority of Lucky Racing, LLC, and was carrying Dmitry as a passenger. Dkt. 4 (amended notice of removal), Ex. A (original petition) at 5 ¶ 12. Alex and Dmitry were traveling eastbound on Interstate 12 through Tangipahoa Parish on the north shore of Lake Pontchartrain in southeastern Louisiana. Id.

That same evening, defendant Elmer Fernandez ("Fernandez") was driving an 18-wheeler that he had parked on the shoulder of Interstate 12. Id. at 5 ¶ 13. Fernandez had not activated his emergency flashers or placed warning devices or cones behind his vehicle. Id. After some time, Fernandez entered the right lane of travel allegedly at an unsafe speed and in an unsafe manner. Id. Alex was driving in that lane and attempted to avoid Fernandez's 18-wheeler, but he failed to do so. Id. at 5 ¶ 14. Alex's trailer ran off the south side of the roadway and collided with a group of trees. Id. Dmitry was ejected from the vehicle through the windshield, and he was seriously injured. Id. at 5-6 ¶ 14. Alex remained in the vehicle and died in the fire that resulted from the accident.[3] Id. Louisiana emergency services were called to the scene, and the crash report indicates that Fernandez was a Maryland resident and the vehicle's owner, Melgar Trucking, was a licensed interstate carrier with a Texas address. Evid. Hr'g Pls. Ex. D at 2.

Moreover, according to Melgar's testimony at the recent evidentiary hearing, he was a citizen of Texas at the time of the accident. But in approximately December 2012, Melgar moved his belongings to Silver Springs, Maryland, and he established a home there with his wife and son. His family owns a car in Maryland with Maryland license plates, and in June 2013, Melgar obtained a Maryland Class A Commercial Driver's License. Id. Def. Ex. A.

One month later, on July 11, 2013, plaintiffs filed a petition for damages in Harris County district court. Dkt. 4 at 1-2. Plaintiffs sued Fernandez, Melgar Trucking, and Melgar, individually and d/b/a Melgar Trucking (collectively, the "defendants"). Id. at 2. Plaintiffs seek a recovery against the defendants based on theories of negligence, gross negligence, and respondeat superior. Id. Melgar was served with process on July 22, 2013, at a Love's truck stop in east Houston. See Evid. Hr'g Pls. Ex. A (return of service) at 1; Dkt. 11 (Melgar's response) at 4 ¶ 9. Defendants removed the case to this court on August 9, 2013. Dkt. 1.

On September 5, 2013, plaintiffs filed a motion to remand. Dkts. 7, 9. Plaintiffs contend that Melgar is a citizen of Texas and therefore precluded from removal on diversity grounds. Dkt. 9 at 6 ¶ 22 (citing 28 U.S.C. § 1441(b)). Melgar filed a response on September 26, 2013, in which he argued that he was a Maryland citizen at the time the case was filed in July 2013 and that complete diversity in the case permitted removal. Dkt. 11 at 2 ¶¶ 2-3.

The court held an evidentiary hearing on November 21, 2013, and plaintiffs' and defense counsel elicited testimony from Melgar regarding his citizenship. Plaintiffs' counsel established that despite maintaining a new residence in Maryland, Melgar retains certain Texas connections. He has one bank account in Texas, and he sends money to a niece in Houston to help with expenses at her home, where he stays when he visits the area. He also has an active Texas Driver's License with a listed address in Houston, Texas. Evid. Hr'g Pls. Ex. E (affidavit of Michael Staley). Further, Melgar Trucking's business address, as indicated by several public filings, is in Houston, Texas. Id. Pls. Ex. B (Harris County Clerk assumed name records); Id. Pls. Exs. C-1 through C-3 (DOT online registration records). The motion to remand is ripe for disposition.


A defendant may remove a civil action to federal court if that court would have had original jurisdiction over the case. 28 U.S.C. § 1441(a). For diversity jurisdiction, the amount in controversy must exceed $75, 000 and complete diversity must exist between all parties. Id. § 1332(a). Additionally, an otherwise removable action may not be removed on diversity grounds "if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought." Id. § 1441(b)(2). The burden of proving federal jurisdiction rests on the removing party-the defendant in this case-who claims to be a citizen of Maryland, not Texas. De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995).

Citizenship questions, like many federal issues, begin with constitutional text. The Fourteenth Amendment to the United States Constitution provides: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." U.S. CONST. amend. XIV, § 1. The term "reside" is therefore key to the state citizenship analysis, but it has been interpreted to require more than a residence in the state. Coury, 85 F.3d at 248. Rather, state citizenship is synonymous with domicile, which for adult persons "is established by physical presence in a place in connection with a certain state of mind concerning one's intent to remain there." Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48, 109 S.Ct. 1597 (1989). Once a domicile is established, it continues until clearly abandoned. Id.; Coury, 85 F.3d at 250. A removing defendant who claims a change of domicile must therefore show: "(1) physical presence at the new location, and (2) an intention to remain there indefinitely." Coury, 85 F.3d at 250 (reaffirming that the burden of persuasion for jurisdictional issues rests with the party seeking the federal forum). In a removed case, a party's citizenship is determined at the time of the complaint's filing and removal to federal court. Id. at 249.

While physical presence can easily be shown in most cases, intent is often more difficult to prove. Id. The court evaluates numerous factors regarding intent, of which no single factor is dispositive. Id. at 251. These factors include the places where the litigant exercises civil and political rights, pays taxes, owns personal and real property, has driver's and other licenses, keeps bank accounts, has places of business and employment, belongs to ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.