# Dorian Carter v. Tracy Sheen

> District Court, C.D. California · August 10, 2020

URL: https://www.frixlaw.com/law-library/cases/10038699

## Case

- **Court:** District Court, C.D. California
- **Decided:** August 10, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV 19-3217-MWF (Ex) Date: August 10, 2020
Title: Dorian Carter v. Tracy Sheen, et al.
Present: The Honorable MICHAEL W. FITZGERALD, U.S. District Judge
Deputy Clerk: Court Reporter:
Rita Sanchez Not Reported
Attorneys Present for Plaintiff: Attorneys Present for Defendant:
None Present None Present
Proceedings (In Chambers): ORDER REMANDING ACTION
On April 23, 2019, this action was removed by Defendant Nathalee Evans to
this District. (Docket No. 1). This action generally concerns the proper trustee of
a trust, and relates to an action in Los Angeles Superior Court where Tracy Sheen
– the Defendant in this action – sued Dorian Carter, the Plaintiff in this action.
(Complaint ¶¶ 6-24) (Docket No. 1-1). On July 6, 2020, Plaintiff and Evans filed a
Notice of Settlement of Entire Action and Proposed Judgment (the “Notice”).
(Docket No. 17). The Notice describes the factual background of the underlying
state actions, and requests various forms of relief from the Court. (See generally
id.).
On July 8, 2020, the Court issued an Order to Show Cause re Settlement
(“OSC”). (Docket No. 18). In the OSC, the Court noted several issues it had with
the Notice, including that (1) Defendant Tracy Sheen had never been served;
(2) there appeared to be no case or controversy as Carter and Evans appeared to
want the same outcome in the state action; (3) the Court was not convinced it had
subject matter jurisdiction over the action; and (4) the Court had serious doubts it
could issue the requested relief. (Id. at 1-2).
On July 31, 2020, Nathalee Evans filed a response to the OSC (the
“Response”). (Docket No. 21). The Court has reviewed the Response, and it still
has concerns regarding the treatment of Defendant Tracy Sheen and the existence
of a case or controversy. Nonetheless, because the Court determines that it lacks
subject matter jurisdiction, the Court remands the action.
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV 19-3217-MWF (Ex) Date: August 10, 2020
Title: Dorian Carter v. Tracy Sheen, et al.
“[F]ederal courts have an independent obligation to ensure that they do not
exceed the scope of their jurisdiction.” Henderson ex rel. Henderson v. Shinseki,
562 U.S. 428, 434 (2011) (assessing whether a provision of a federal statute had
jurisdictional consequences). “District courts shall have original jurisdiction of all
civil actions arising under the Constitution, laws, or treaties of the United States.”
28 U.S.C. § 1331. Additionally, the Court could have jurisdiction over this action
pursuant to 28 U.S.C. § 1332. Jurisdiction under § 1332 requires that the amount
in controversy exceed $75,000 and that the parties meet the complete diversity
rule. 28 U.S.C. § 1332(a); Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826,
829 (1989). For complete diversity to exist, the state citizenship of every plaintiff
must differ from the state citizenship of every defendant. Newman-Green, 490
U.S. at 829.
In the case of natural persons, “to show state citizenship for diversity
purposes…a party must (1) be a citizen of the United States, and (2) be domiciled
in the state.” Kantor v. Wellesey Galleries, Ltd., 704 F.2d 1088, 1090 (9th Cir.
1983). “A person’s domicile is her permanent home, where she resides with the
intention to remain or to which she intends to return.” Kanter v. Warner-Lambert
Co., 265 F.3d 853, 857 (9th Cir. 2001). Finally, “federal-diversity jurisdiction
depends on the citizenship of the parties at the time the suit is filed.” Dole Food
Co. v. Patrickson, 538 U.S. 468, 478 (2003).
If there is any doubt regarding the existence of subject matter jurisdiction,
the court must resolve those doubts in favor of remanding the action to state court.
See Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (“Federal jurisdiction
must be rejected if there is any doubt as to the right of removal in the first
instance.”).
First, the Response does not demonstrate that the Court has jurisdiction
pursuant to 28 U.S.C. § 1331. In the OSC, the Court noted that the Complaint does
not assert any federal claims, and the Court was not convinced that the various
federal laws cited in the Notice have any application to this matter. In their
Response, the parties argue that federal question jurisdiction is established “under
the Civil Rights Act of 1866” because “the default and default judgment” not
entered by the state court resulted from “discriminatory retaliation due to the
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV 19-3217-MWF (Ex) Date: August 10, 2020
Title: Dorian Carter v. Tracy Sheen, et al.
association of Evans in a voting rights case.” (Response at 4-7). The Response
also cites to a California Supreme Court Judicial Ethics committee opinion which
“was consistent with the voting rights case.” (Id. at 8-9).
This argument is unconvincing. The Response does not provide any detail
regarding which voting rights case allegedly resulted in the discrimination, and the
Judicial Ethics committee opinion cited by the Response has nothing to do with
voting rights, and instead discusses whether judicial officials can sit on the board
of charter schools. (See CJEO, Formal Opinion 2017-011. (Cal. Supreme Court
Committee on Judicial Ethics Opinion) (“The Committee on Judicial Ethics
Opinions has been asked to provide an opinion on the following question: ‘May a
judicial officer serve on the board of a charter school or a nonprofit organization
operating one or more charter schools? The charter school receives public funds
but is not likely to be involved in litigation within the jurisdiction of the judge’s
court. It does not have an open enrollment policy and board membership is
uncompensated and unelected.’”)).
Additionally, the Los Angeles Superior Court action, Dorian Carter v. Tracy
Sheen et al., Case No. BC458090, was filed in March 2011, and therefore had been
pending for nine years prior to the removal of this action. The Response makes no
attempt to explain why federal question jurisdiction was only recently established,
or why removal is appropriate now but was not in 2011. Accordingly, the
Response did not establish that the Court has federal question jurisdiction over this
action.
Second, the Response does not demonstrate that the Court has jurisdiction
pursuant to 28 U.S.C. § 1332. As pointed out in the OSC, the Complaint alleges
that Evans “is an individual who resides in Fairview, Oregon and Los Angeles,
California” while Carter, according to the Notice, resides in California.
(Complaint ¶ 4; Notice at 7). In the Response, the parties argue that “[a]t the time
Carter filed her complaint . . . the complaint properly alleged that Evans was a
citizen of both the State of California and the State of Oregon” because “[a]t that
time she had a home in California where both she and her elderly mother lived
(with other family members) and she also resided with her partner in Oregon.”
(Response at 4). After that, at some unknown point of time and “at the time of the
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV 19-3217-MWF (Ex) Date: August 10, 2020
Title: Dorian Carter v. Tracy Sheen, et al.
April 23, 2019 removal she was solely a citizen of the State of Oregon” as “[h]er
elderly mother had died and she married her partner and the both reside in
Oregon.” (Id. at 4).
The Court is not convinced there is complete diversity between the parties.
There is no dispute that Dorian Carter is domiciled in California, but the Court
cannot determine Evans’ domicile when the Complaint was filed, as the Response
indicates she had residences in both Oregon and California. The Court also cannot
determine Evans’ domicile at the time of removal. With respect to Evans’ move,
the Response does not indicate when the move occurred, or whether Evans intends
to make Oregon her new domicile or eventually return to California. This is
crucial, as “a change in domicile requires the confluence of (a) physical presence at
the new location with (b) an intention to remain there indefinitely.” Brinkman v.
Schweizer Aircraft Corp., No. CV 10-04601-MHP, 2011 WL 863499, at *3 (N.D.
Cal. Mar. 10, 2011) (emphasis added)(citing Lew v. Moss, 797 F.2d 747, 749–750
(9th Cir. 1986)). The Response makes no indication or argument suggesting that
Evans intends to remain in Oregon other than the fact that she currently lives there.
Accordingly, the Court is not convinced that complete diversity between the
parties has been established.
Regardless, neither the Response nor the Complaint establish that the
amount in controversy of this action exceeds $75,000. Indeed, as noted by the
Court in the OSC, the Court is not convinced there even is a controversy, and
neither the Complaint nor the Response make any attempt to establish the amount
in controversy is greater than $75,000.
If there are any doubts regarding jurisdiction, the action must be remanded
to the Superior Court. The Court has serious doubts as to its jurisdiction over this
action, as it at bottom appears to stem from the Superior Court’s refusal to enter
default judgment. That is an issue for the Superior Court to resolve, not this Court.
Accordingly, the Court REMANDS this action to the Los Angeles County
Superior Court.
IT IS SO ORDERED.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10038699. Public record. Not legal advice.