Hawkins v. Masters Farms, Inc. - 2003 WL 21555767 (D. Kan. 2003)

I. Issue
Whether Mr. Creal was a citizen of the State of Kansas or the State of Missouri at the time of his death.
II. Fact
Plaintiffs representing the Estate of James Patrick Creal brought this action arising from a December 8, 2000 traffic accident in which a tractor driven by Defendant collided with Mr. Creal's automobile, resulting in the death of Mr. Creal.  Plaintiffs filed this action in federal court alleging the existence of diversity jurisdiction under 28 U.S.C. §1332.
IV. Holding
1. Rule 12(b)(1) Motion to Dismiss Standard
A court reviewing a factual attack may not presume that the plaintiff's allegations are true.  Plaintiffs bear the burden of proving the jurisdiction is proper.
2. Federal Subject Matter Jurisdiction
A person is a "citizen" of the state in which he or she is "domiciled."  For adults, domicile is established by physical presence in a place in connection with a certain state of mind concerning one's intent to remain there.  Mr. Creal had not only established a physical presence in the State of Kansas, but also displayed an intent to remain there.  He was a citizen of the State of Kansas at the time of his death.  Because Plaintiffs have failed to carry their burden of showing that complete diversity exists among the parties, the court grants Defendants' motion to dismiss for lack of subject matter jurisdiction.