United States District Court, E.D. Kentucky, Southern Division, Pikeville
JUDITH H. GREER, Plaintiff,
JOSEPH E. KAMINKOW and BENITA RILEY KAMINKOW, Defendants.
OPINION AND ORDER
K. CALDWELL, CHIEF JUDGE
matter is before the Court on the plaintiff's motion to
remand (DE 4) the matter to Floyd Circuit Court. For the
following reasons, the motion will be denied.
plaintiff, Judith Greer, filed this action in Floyd Circuit
Court against two defendants: Joseph and Benita Kaminkow. It
appears that Benita Kaminkow's actual name is Benita
Riley. Accordingly, the Court will refer to her as Riley in
complaint, Greer asserted that she cleaned homes and cared
for properties owned by the defendants. She asserts that she
went to a home owned by the defendants in Lexington, Kentucky
and was injured when she fell over some boxes on an outside
walkway. She asserts a negligence claim against the
defendants removed the action to this Court, asserting that
this Court has jurisdiction over the matter pursuant to the
“diversity jurisdiction” of federal courts set
forth in 28 U.S.C. § 1332. Under that statute, this
Court has jurisdiction over all matters in which the amount
in controversy exceeds $75, 000 and is between citizens of
different states. For subject matter jurisdiction to exist
under this statute, complete diversity of citizenship must
exist, meaning that “no party has the same citizenship
as any opposing party.” PaineWebber, Inc. v.
Cohen, 276 F.3d 197, 201 (6th Cir. 2001).
party disputes that the amount in controversy in this action
exceeds $75, 000. In their notice of removal, the defendants
assert that there is also complete diversity of citizenship
because plaintiff is a citizen of Kentucky, while both
defendants are citizens of Nevada.
courts are courts of limited jurisdiction and the law
‘presume[s] that a cause lies outside this limited
jurisdiction.'” Vander Boegh v. Energy
Solutions, Inc., 772 F.3d 1056, 1064 (6th Cir. 2014)
(quoting Kokkonen v. Guardian Life Ins. Co. of Am.,
511 U.S. 375, 377 (1994)). As the removing party, the
defendants have the burden of establishing this Court's
jurisdiction by a preponderance of the evidence. Mays v.
City of Flint, Mich., 871 F.3d 437, 449 (6th Cir. 2017).
citizenship of a person is determined by his domicile.
Certain Interested Underwriters at Lloyd's, London,
England v. Layne, 26 F.3d 39, 41 (6th Cir. 1994).
Domicile is a combination of physical presence, along with
the intent to remain permanently in the chosen location.
Mississippi Band of Choctaw Indians v. Holyfield,
490 U.S. 30, 48 (1989).
has met her burden of establishing by a preponderance of the
evidence that she has been domiciled in Nevada since 2008.
motion to remand, Greer submits evidence that Riley has a
Kentucky driver's license that was issued twelve days
after the state court action was filed; that Riley lists her
address as Prestonsburg, Kentucky on the Kentucky Bar
Association website; that Riley is currently a member and the
registered agent of Riley, Herald & Banks PLLC, which is
located in Prestonsburg, Kentucky; and that Riley and
Kaminkow own a residence located in Lexington, Kentucky.
response, Riley concedes that her domicile was in Floyd
County, Kentucky until 2008. She asserts by affidavit,
however, that in 2008, she married Kaminkow and then moved to
Reno, Nevada to a home there owned him. She asserts that the
couple has resided in Nevada since 2008 and now lives in a
home in Las Vegas that she jointly owns with Kaminkow. She
asserts that she intends to maintain the Las Vegas home as
her domicile indefinitely. Greer does not dispute that
Riley's husband, Kaminkow, is domiciled in Nevada.
asserts that the Lexington home owned jointly by her and
Kaminkow is used as a family retreat where she, her husband,
and five children stay when they “occasionally”
visit Lexington. She asserts that she chose to renew her
driver's license in Kentucky because Nevada required that
she present a birth certificate to obtain a Nevada
driver's license and she does not have a copy of her
also concedes that she worked at a law practice in Kentucky
prior to moving to Nevada but asserts that she now works only
part-time for the practice and does so only by reviewing case
in Nevada that the Kentucky practice ships to her. She
asserts that she is now employed by an online gaming company
headquartered in San Francisco, which she flies to from Las
Vegas as needed. Riley attaches the affidavit of another
member of the the Kentucky law firm supporting her assertions
regarding her involvement in the Kentucky practice. She also
attaches an affidavit from a certified public accountant, who
states that for the years 2014, 2015, and 2016, Riley filed
income tax returns as a resident of Nevada.
subject matter jurisdiction may be raised by any party at any
time and may even be raised sua sponte by the Court. Von
Dunser v. Aronoff, 915 F.2d 1071, 1074 (6th Cir.1990).
Based on the evidence currently before it, however, the Court
finds by a ...