United States District Court, E.D. Arkansas, Jonesboro Division
SHARON IVY, Administratrix of the Estate of Earl Lee Parker and on behalf of all wrongful death beneficiaries of Earl Lee Parker, Deceased PLAINTIFF
DAVID D. NUGENT; PROPANE RESOURCES SUPPLY AND MARKETING LLC; PROPANE RESOURCES TRANSPORTATION LLC; and PROPANE RESOURCES LLC DEFENDANTS
Marshall Jr., United States District Judge
Earl Lee Parker a citizen of Arkansas or Tennessee? The
answer determines whether this Court has subject matter
jurisdiction in this removed case. Reece v. Bank of New
York Mellon, 760 F.3d 771, 777-78 (8th Cir.
2014). As he was walking south on the inside shoulder of
Interstate 55' s northbound lane near West
Memphis, Arkansas in the middle of the night on the last day
of April 2016, Parker was hit and killed by a
tractor-trailer. The driver was David Nugent, a Tennessean.
The big truck was owned and operated by the Propane Resources
entities, who are citizens of Missouri and Minnesota.
Parker's estate filed this case in the Circuit Court of
Crittenden County, Arkansas alleging negligence in the
accident. The estate also said that Parker was domiciled in
Tennessee when he died. Nugent and the Propane Resources
entities removed, saying that Parker was actually an
Arkansawyer, thus making the parties completely diverse. 28
U.S.C. §§ 1332(a)(1) & (c)(2). The estate has
moved to remand. Nugent and the Propane Resources entities
sought some jurisdictional discovery. This was done. The
parties' supplemental papers are now in.
sad circumstances of Parker's death ended a troubled
life. Parker was born and raised in Crittenden County,
Arkansas. He dropped out of high school in the eleventh
grade, joined the Marine Corps, and was discharged for
violent behavior. He was a polysubstance abuser. He had
paranoid schizophrenia and health problems, including
diabetes. Most of his adult life was spent under civil
commitment at the State Hospital and other facilities in
Little Rock through the Act 911 Program. Ark. Code Ann.
§ 5-2-310(a). Parker left Little Rock in March 2015. He
spent the next ten months at different facilities in Arkansas
before being hospitalized in Memphis, Tennessee in January
2016. He was released from the hospital to the Peabody
Center, a supervised group home in Memphis, where he lived
until he died. He was in Tennessee about three months.
Citizenship isn't the same as residency. It requires a
physical presence and an intent to stay. Janzen v.
Goos, 302 F.2d 421, 425 (8th Cir. 1962). But
Parker's intent is difficult to discern. He expressed
different intentions at different times. Although he talked
about moving to Kansas City, he never made it there. Instead,
he spent most of his life in Arkansas-where his family was
-and the last bit in Tennessee. As the removing parties,
Nugent and the Propane Resources entities have the burden of
proof on jurisdiction. Altimore v. Mount Mercy
College, 420 F.3d 763, 768 (8th Cir. 2005). They argue
that, because Parker had always been an Arkansas citizen, a
few months at the end of his life wasn't enough to change
his domicile. They say his time in Tennessee didn't
reflect any intention to remain there. Hargett v.
Revclaims, LLC, 854 F.3d 962, 965 (8th Cir. 2017).
Parker was a longtime Arkansawyer; and his domicile remained
the same unless or until it changed. Janzen, 302
F.2d at 425. A change can be instantaneous, though, if the
presence and intent elements are shown. Holmes v.
Sopuch, 639 F.2d 431, 433 (8th Cir. 1981)(per
preponderance of the material evidence reveals that Parker
was a citizen of Tennessee when he died. First, he lived
there. That shows a physical presence. Second, he chose to
live there at the Peabody Center, a permanent group home. No.
11-2 at 2-8. Eight people live at this long-term
treatment and living facility. The Peabody Center is not a
short-term facility like a hospital. Third, Parker's
social security benefits were directed to the Center's
director as Parker's representative payee. No. 11-2
at 10-19. This shows another degree of permanence - an
expectancy by Parker, the Peabody Center, and the Social
Security Administration that he would be there month after
month. Last, Parker had a post office box in Memphis. No.
11-2 at 9. That's a link to the city beyond the
Peabody Center. An acquaintance could have reached Parker in
Tennessee by either mail or personal visit. Read together,
all these facts show his physical presence there, and an
intent to stay, at least until he decided to relocate again.
record is admittedly murky. Nugent and the Propane Resources
entities are right that the probate court's finding, the
death certificate, and the testimony aren't solid. The
medical evidence also conflicts with itself too often to be
persuasive. No. 26-1 & No. 26-3 at 5,
13. Still, several things are clear: Parker lived in
Arkansas for most of his life, moved to Tennessee before he
died, and talked about going to Kansas City. That last part
is important; once at the Peabody Center, Parker didn't
express a desire to move back to Arkansas. His aspirations
were about Kansas City, while his days were about Memphis.
No. 26-1 at 4-5. Even though it's undisputed
that he spent most of his life in Arkansas, he wasn't
living there when he died. At that point, Parker had neither
a physical presence, nor an obvious intent to stay, in
Arkansas. These facts - coupled with the evidence favoring
Tennessee - overcome his significant historical ties to
domicile changed during the months before his death.
No. 11, granted. Parker and Nugent are both citizens
of Tennessee. Complete diversity is lacking. The case is
therefore remanded to the Circuit Court of ...