As Advance America’s only evidence of non South Carolina citizenship is a possible change of residence, not domicile, it fails to meet its burden of proof as a matter of law. Accordingly, even though I disagree with the majority’s conclusion that the Complaint’s definition of the Damages Subclasses limits their membership to citizens of South Carolina at the time the Complaint was filed, Advance America has failed to show any non South Carolina citizen actually exists. I thus concur in the judgment of the majority because Advance America has failed to demonstrate the existence of federal jurisdiction under 28 U.S.C. § 1332(d)(2).
1. Because we conclude that Advance America’s dual citizenship precludes it from meeting its burden in this case of demonstrating jurisdiction under CAFA, we need not determine whether Advance America and plaintiffs are citizens of different States for Article III purposes. Cf. Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 577 n. 6, 124 S. 1920, 158 L.Ed.2d 866 (2004). ” U.S. Const. art. 3, § 2, cl. 1.
2. For purposes of diversity jurisdiction, residency is not sufficient to establish citizenship. See Axel Johnson, Inc. v. Carroll Carolina Oil Co., 145 F.3d 660, 663 (4th Cir.1998). To be a citizen of a State, a person must be both a citizen of the United States and a domiciliary of that State. Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 828, 109 S. 2218, 104 L.Ed.2d 893 (1989). Domicile requires physical presence, coupled with an intent to make the State a home. Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48, 109 S. 1597, 104 L.Ed.2d 29 (1989); Jahed v. Acri, 468 F.3d 230, 236 (4th Cir.2006); Webb v. Nolan, 484 F.2d 1049, 1051 (4th Cir.1973) (“The law seems clear that to effect a change of citizenship from one state to another there must be residence in the new domicile and an intention to remain there permanently or indefinitely”). Advance America’s affidavits are in this manner deficient in demonstrating that the 19 persons are “citizens” of a State different from South Carolina.
Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Judge TRAXLER joined. Judge AGEE wrote a separate opinion concurring in part, dissenting in part, and concurring in the judgment.
While we assume for purposes of our opinion that some of the persons who obtained payday loans had moved from South Carolina and were thereafter “citizens” of States other than South Carolina, Advance America’s affidavits only indicated that these persons “resided” outside of South Carolina
Johnson and Herbert purport to represent themselves and a class of other South Carolina citizens who are similarly situated. In their complaint, they defined the proposed class to contain three subclasses, each defined as follows:
Advance America is correct in noting that it, as a corporation, has dual citizenship for purposes of determining diversity jurisdiction. “[A] corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business.” 28 U.S.C. § 1332(c)(1) (emphasis added). The statute’s use of the conjunctive gives dual, not alternative, citizenship to a corporation whose principal place of business is in a State different from the State where it is incorporated. Therefore, for purposes of diversity jurisdiction, Advance America is a citizen of both Delaware, its State of corporation, and South Carolina, the State of its principal place of business. Yet, Advance America relies on its Delaware citizenship to create minimal diversity, ignoring the fact that it is also a citizen of South Carolina. Whether it is entitled to rely on only one citizenship where its other citizenship would destroy federal jurisdiction is resolved by the statutory language itself and by the burden of proof imposed on removing parties.
To be sure, the plaintiffs in this case have taken care to restrict the scope of their allegations so as to avoid federal jurisdiction under CAFA. Yet the plaintiffs, as masters of their complaint, can choose to circumscribe their class definition in this way. See Lincoln Prop. Co. v. Roche, 546 U.S. 81, 94, 126 S. 606, 163 L.Ed.2d 415 (2005) (holding that because the plaintiffs did not name as a defendant a party who had an interest in the action, the defendant need not have alleged that party’s citizenship upon removal); id. at 91, 126 S. 606 (“In general, the plaintiff is the master of the complaint and has the option of naming only those parties the plaintiff chooses to sue, subject only to the rules of joinder [of] necessary parties” (internal quotation marks and citations omitted)); Custer v. Sweeney, 89 F.3d 1156, 1165 (4th Cir.1996) (“[T]he plaintiff is master of his complaint[,] and [this] generally permits plaintiffs to ‘avoid federal jurisdiction by exclusive reliance on state law’ ” (quoting Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S. 2425, 96 L.Ed.2d 318 (1987))). In this case, the plaintiffs, as masters of their complaint, limited the class to citizens of South Carolina, determined as of the time the complaint was filed. See 28 U.S.C. § 1332(d)(7).
Injunctive Relief Class: All citizens of South Carolina who are domiciled in South Carolina and who borrowed money from Defendant in the three years preceding the filing of the complaint or who will borrow money from Defendant in the future.
However, as the majority opinion correctly notes, “the burden of establishing jurisdiction remains with Advance America,” supra at 936, the party seeking removal to federal court. “[T]he party seeking to invoke federal jurisdiction must ? demonstrate the basis for federal jurisdiction.” Strawn v. AT & T Mobility LLC, https://installmentloansgroup.com/payday-loans-tn/ 530 F.3d 293, 298 (4th Cir.2008). Even though, as pointed out above, the Damages Subclasses could include non South Carolina citizens, it is Advance America’s burden to show that there were indeed such members. Advance America failed to meet its burden of proof to show diverse citizenship in the Damages Subclasses as a matter of law. The only evidence proffered by Advance America to sustain its burden of proof was an affidavit declaring that certain customers “changed their residence and, therefore, citizenship.” (J.A. 22.) As the majority recognizes in footnote 2, citizenship is determined not by residence but by the jurisdiction in which a citizen is domiciled. “[S]tate citizenship for purposes of diversity jurisdiction depends not on residence, but on national citizenship and domicile, and the existence of such citizenship cannot be inferred from allegations of mere residence, standing alone.” Axel Johnson, Inc. v. Carroll Carolina Oil Co., 145 F.3d 660, 663 (4th Cir.1998) (internal citation omitted).