PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
LISA A. JOHNSON; GILBERT A.
HERBERT, on behalf of themselves
and all others similarly situated,
Plaintiffs-Appellees,
v.
ADVANCE AMERICA, CASH ADVANCE No. 08-2186
CENTERS OF SOUTH CAROLINA,
INCORPORATED, d/b/a Advance
America Cash Advance Centers,
d/b/a Advance America,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Patrick Michael Duffy, District Judge.
(2:07-cv-03447-PMD)
Argued: October 29, 2008
Decided: December 12, 2008
Before NIEMEYER, TRAXLER, and AGEE,
Circuit Judges.
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.
2 JOHNSON v. ADVANCE AMERICA
COUNSEL
ARGUED: Barry Goheen, Michael C. Russ, KING & SPAL-
DING, L.L.P., Atlanta, Georgia, for Appellant. Joe R. What-
ley, Jr., WHATLEY DRAKE & KALLAS, LLC, New York,
New York, for Appellees. ON BRIEF: Jonathan R. Chally,
KING & SPALDING, L.L.P., Atlanta, Georgia; William
Douglas Smith, JOHNSON SMITH HIBBARD & WILD-
MAN LAW FIRM, L.L.P., Spartanburg, South Carolina;
Thomas C. Brittain, HEARN, BRITTAIN & MARTIN, P.A.,
Myrtle Beach, South Carolina, for Appellant. J. Preston
Strom, Jr., Mario A. Pacella, STROM LAW FIRM, L.L.C.,
Columbia, South Carolina, for Appellees.
OPINION
NIEMEYER, Circuit Judge:
Lisa Johnson and Gilbert Herbert, citizens of South Caro-
lina, filed an action on behalf of themselves and all other "cit-
izens of South Carolina," who were similarly situated, against
Advance America, Cash Advance Centers of South Carolina,
Inc., alleging that Advance America, in making "payday
loans" to the plaintiffs, violated South Carolina law, which
prohibits unconscionable loans and requires good faith and
fair dealing in contracts. Alleging minimal diversity under the
Class Action Fairness Act of 2005 ("CAFA"), 28 U.S.C.
§ 1332(d)(2)(A), Advance America removed the action to
federal court under 28 U.S.C. § 1453(b). It claimed that it sat-
isfied the requirement of "minimal diversity," as defined in
§ 1332(d)(2)(A), because either (1) it is a citizen of Delaware,
where it was incorporated, even though it is also a citizen of
South Carolina, where it has its principal place of business, or
(2) some of the class members had moved from South Caro-
lina and were citizens of other States.
JOHNSON v. ADVANCE AMERICA 3
On the plaintiffs’ motion to remand, the district court found
that Advance America failed to establish minimal diversity
under § 1332(d)(2)(A) because, even though Advance Amer-
ica is a citizen of Delaware, it is also a citizen of South Caro-
lina, and all members of the plaintiff class are citizens of
South Carolina. The court further found that the class action
fell within the "home-state exception" to CAFA jurisdiction
in 28 U.S.C. § 1332(d)(4)(B) because in a class limited by
definition to "citizens of South Carolina," at least two-thirds
of the class members necessarily are citizens of South Caro-
lina. Accordingly, the district court remanded the case to state
court. We granted Advance America’s petition for permission
to appeal the remand order under 28 U.S.C. § 1453(c).
Because Advance America cannot carry its burden of dem-
onstrating that any member of the plaintiffs’ class is a citizen
of a State "different from" Advance America, as required by
28 U.S.C. § 1332(d)(2)(A), we affirm. Advance America is a
citizen of South Carolina, albeit also a citizen of Delaware,
and the class is defined to include only citizens of South Caro-
lina, thus excluding persons who may have moved from South
Carolina and established citizenship elsewhere at the time the
action was commenced.
I
In their complaint, filed in the Georgetown County Court
of Common Pleas in South Carolina, Johnson and Herbert
alleged that they entered into numerous payday loans with
Advance America and that under the loan agreements, they
agreed to repay the principal amount plus 15% interest two
weeks after receiving the loan. They alleged that they cur-
rently carry open loans with Advance America, which they
renew every two weeks by paying only the interest with addi-
tional payday loans. Because of fixed financial obligations,
which nearly equal their incomes, they alleged that they are
now unable to pay the loans.
4 JOHNSON v. ADVANCE AMERICA
Johnson and Herbert claimed that Advance America, in
issuing the payday loans, violated South Carolina statutory
law prohibiting unconscionable loan agreements, S.C. Code
§ 37-5-108, and South Carolina common law duties of good
faith and fair dealing. They alleged that Advance America
failed to conduct credit checks to verify customers’ finances
and ability to repay loans before entering into the agreements
and that the agreements contained unconscionable arbitration
clauses. For relief, they seek a declaratory judgment that
Advance America’s conduct violated South Carolina law;
injunctive relief prohibiting Advance America from issuing
any payday loans until it modifies its business practices; and
damages.
Johnson and Herbert purport to represent themselves and a
class of other South Carolina citizens who are similarly situ-
ated. In their complaint, they defined the proposed class to
contain three subclasses, each defined as follows:
Injunctive Relief Class: All citizens of South Caro-
lina 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.
Damages Subclass One: All citizens of South Caro-
lina who borrowed money from Defendant in the
three years preceding the filing of this complaint
whose total monthly obligations exceeded 55% of
their gross monthly income.
Damages Subclass Two: All citizens of South Caro-
lina who renewed a loan with Defendant by repaying
only the interest and received a new loan.
Proceeding under CAFA, Advance America filed a notice
of removal to federal court under the authority of 28 U.S.C.
§ 1453(b), alleging that federal jurisdiction was conferred by
JOHNSON v. ADVANCE AMERICA 5
28 U.S.C. § 1332(d)(2). Johnson and Herbert filed a motion
to remand, claiming that Advance America had improperly
removed the action to federal court because minimal diversity
did not exist among the parties under § 1332(d)(2)(A). More-
over, they claimed that, even if there was minimal diversity
under § 1332(d)(2)(A), CAFA’s home-state exception, 28
U.S.C. § 1332(d)(4)(B), defeated federal jurisdiction.
The district court granted plaintiffs’ motion by entry of an
order of remand dated April 25, 2008. We granted Advance
America’s petition for permission to appeal, by order dated
October 29, 2008. This appeal is thus limited to whether mini-
mal diversity under CAFA exists in this case and whether
CAFA’s home-state exception applies.
II
Congress enacted CAFA in 2005 to address abuses of the
class action device. Such abuses, it found, had the effect of,
among other things, "undermin[ing] . . . the concept of diver-
sity jurisdiction . . . in that State and local courts are—
(A) keeping cases of national importance out of
Federal court;
(B) sometimes acting in ways that demonstrate
bias against out-of-State defendants; and
(C) making judgments that impose their view of
the law on other States and bind the rights of
the residents of those States."
CAFA § 2(a)(4), Pub. L. No. 109-2, 119 Stat. 4, 5 (2005), 28
U.S.C. § 1711 note. In light of these findings, Congress
enacted CAFA to
restore the intent of the framers of the United States
Constitution by providing for Federal court consider-
6 JOHNSON v. ADVANCE AMERICA
ation of interstate cases of national importance under
diversity jurisdiction.
CAFA § 2(b)(2). CAFA amended, among other things, the
concept of diversity jurisdiction for class actions to require
only minimal diversity, 28 U.S.C. § 1332(d)(2). It also liberal-
ized the requirements for removing class actions to federal
courts, 28 U.S.C. § 1453(b).
Specifically, as relevant to this appeal, the diversity
requirements were amended to confer jurisdiction on district
courts over "any civil action in which the matter in contro-
versy exceeds the sum or value of $5,000,000, exclusive of
interest and costs, and is a class action in which . . . any mem-
ber of a class of plaintiffs is a citizen of a State different from
any defendant." 28 U.S.C. § 1332(d)(2)(A).
The burden of establishing federal jurisdiction on the
removal of a class action is on the removing party. See Strawn
v. AT&T Mobility LLC, 530 F.3d 293, 298 (4th Cir. 2008).
Advance America contends that the minimal diversity
requirement is satisfied in this case. It argues first that
because Advance America is incorporated under the laws of
Delaware and is therefore a Delaware citizen, its citizenship
is different from the citizenship of the class members.
Although Advance America is also a citizen of South Caro-
lina, where it has its principal place of business, it asserts that
its "dual citizenship in South Carolina does not destroy the
minimal diversity created by certain alleged South Carolina
citizens suing a Delaware corporation." Stated otherwise, it
maintains that "Advance America’s dual citizenship is suffi-
cient to establish minimal diversity under CAFA," regardless
of the citizenship of the plaintiffs.
Advance America is correct in noting that it, as a corpora-
tion, has dual citizenship for purposes of determining diver-
sity jurisdiction. "[A] corporation shall be deemed to be a
JOHNSON v. ADVANCE AMERICA 7
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 dif-
ferent from the State where it is incorporated. Therefore, for
purposes of diversity jurisdiction, Advance America is a citi-
zen of both Delaware, its State of corporation, and South Car-
olina, 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 citi-
zenship 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.
As noted, the burden of establishing diversity jurisdiction
remains with Advance America. Thus, to establish minimal
diversity under CAFA, Advance America must demonstrate
that "any member of [the] class of plaintiffs is a citizen of a
State different from any defendant." 28 U.S.C.
§ 1332(d)(2)(A) (emphasis added). It cannot, however, dem-
onstrate that the plaintiffs, who are South Carolina citizens,
are citizens of a State different from Advance America. This
is because Advance America is a citizen of South Carolina,
even though it is also a citizen of Delaware. Because Advance
America has South Carolina citizenship, it cannot carry its
burden of demonstrating that the citizenship of the South Car-
olina class members is different from its own. The language
of the statute imposes a requirement on Advance America to
prove the negative—i.e. that it is not a citizen of South
Carolina—and that it cannot do.1 Accordingly, we reject its
1
Because we conclude that Advance America’s dual citizenship pre-
cludes 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 (2004). Arti-
cle III gives federal courts jurisdiction over controversies "between Citi-
zens of different States." U.S. Const. art. 3, § 2, cl. 1.
8 JOHNSON v. ADVANCE AMERICA
argument that its dual citizenship entitles it to rely on its Dela-
ware citizenship to establish minimal diversity under CAFA.
See Sundy v. Renewable Envtl. Solutions, LLC, No. 07-5069-
CV-SW-ODS, 2007 WL 2994348, at *3 n.4 (W.D. Mo. Oct.
10, 2007) ("The court does not agree with Defendant’s sug-
gestion that minimal diversity exists unless a member of the
class is a citizen of both Missouri and Delaware"). But see
Fuller v. Home Depot Servs., LLC, No. 1:07-CV-1268-FLV,
2007 WL 2345257 (N.D. Ga. Aug. 14, 2007) (reaching the
opposite conclusion).
III
Advance America also contends that the district court erred
in "rejecting undisputed evidence establishing that minimal
diversity on the Plaintiffs’ side exists." As Advance America
explains:
While Plaintiffs’ proposed class definition is pur-
portedly limited to "citizens of South Carolina," the
Complaint does not define when such citizenship is
to be determined. As a result, under Plaintiffs’ pro-
posed class definition, fairly read, Plaintiffs’ class
contains any individual who (1) entered into a [pay-
day loan] with Advance America and (2) was at any
time a South Carolina citizen. Advance America
demonstrated to the district court that many of these
individuals are now, and were at the time Plaintiffs
filed their Complaint (the time relevant for determin-
ing diversity jurisdiction under CAFA), citizens of
states other than South Carolina.
(Emphasis added). Advance America presented affidavits
demonstrating that at least 19 customers had moved out of
South Carolina and "resided" in 19 other States.
Johnson and Herbert respond that Advance America "mis-
characterizes" the definition of the class they purport to repre-
JOHNSON v. ADVANCE AMERICA 9
sent by suggesting that it includes persons who were "at any
time a South Carolina citizen." We agree.
The complaint defines three subclasses whom plaintiffs
purport to represent, and each is defined as a group of "citi-
zens of South Carolina." For example, the class for injunctive
relief defines the class as:
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.
(Emphasis added). In short, each of the subclasses is defined
as a group of South Carolina citizens who engaged in certain
transactions or satisfy certain factual criteria. Thus, under the
definition in the complaint, if one of Advance America’s cus-
tomers had in fact established domicile outside of South Caro-
lina before the complaint was filed, as Advance America’s
affidavits suggest,2 such customers would not be "citizens of
2
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 Ameri-
ca’s affidavits only indicated that these persons "resided" outside of South
Carolina. 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 (1989). Domi-
cile 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 (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 resi-
dence in the new domicile and an intention to remain there permanently
or indefinitely"). Advance America’s affidavits are in this manner defi-
cient in demonstrating that the 19 persons are "citizens" of a State differ-
ent from South Carolina.
10 JOHNSON v. ADVANCE AMERICA
South Carolina" at the time the complaint was filed and there-
fore would not be members of the proposed class. See 28
U.S.C. § 1332(d)(7) (providing that citizenship is to be deter-
mined as of the date of the complaint or other paper that first
indicates the existence of federal jurisdiction).
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 defini-
tion in this way. See Lincoln Prop. Co. v. Roche, 546 U.S. 81,
94 (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 ("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 (1987))). In this case, the plain-
tiffs, 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).
Thus, under the class definition set forth in the complaint,
if a putative class member had in fact changed his or her State
of domicile by the time the complaint had been filed, then the
person no longer would qualify as a member of the class and
accordingly would have no impact on whether minimal diver-
sity exists. And if the person established citizenship in another
State after the complaint was filed, it would not affect juris-
diction that existed at the time the complaint or notice of
removal was filed. See Mollan v. Torrance, 22 U.S. (9
Wheat.) 537, 539 (1824); see also Grupo Dataflux, 541 U.S.
at 570-71; 28 U.S.C. § 1332(d)(7).
JOHNSON v. ADVANCE AMERICA 11
Accordingly, we also reject Advance America’s second
basis for claiming that minimal diversity exists in this case.
IV
Because we conclude that Advance America has not dem-
onstrated the minimal diversity required by 28 U.S.C.
§ 1332(d)(2)(A), we need not reach the issue whether the
home-state exception in § 1332(d)(4)(B) was satisfied. But we
observe, as a matter of logic, that if the class is limited to citi-
zens of South Carolina, it could hardly be claimed that two-
thirds of the class members were not citizens of South Caro-
lina.
V
CAFA has indeed relaxed the requirements for demonstrat-
ing diversity jurisdiction and for removing class actions to
allow federal courts more readily to supervise those class
actions that are "interstate cases of national importance." See
CAFA § 2(b)(2). But in enacting this legislation to remedy
state court abuses of the class action device, Congress did not
give federal courts jurisdiction over all class actions, specifi-
cally excluding those consisting of "primarily local matters."
See Sen. Rep. No. 109-14, at 6 (2005) ("This Committee
believes that the current diversity and removal standards as
applied in interstate class actions have facilitated a parade of
abuses, and are thwarting the underlying purpose of the con-
stitutional requirement of diversity jurisdiction. [CAFA]
addresses these concerns by establishing ‘balanced diversi-
ty[,]’ a rule allowing a larger number of class actions into fed-
eral courts, while continuing to preserve primary state court
jurisdiction over primarily local matters") (emphasis added)).
Nor did Congress purport to alter through CAFA our federal
system of dual sovereignty where we presume state courts to
be competent. See Tafflin v. Levitt, 493 U.S. 455, 458-59
(1990).
12 JOHNSON v. ADVANCE AMERICA
This case, we conclude, falls into that class of cases which
Congress found appropriate to leave to the States under
CAFA. The plaintiffs are South Carolina citizens and the class
they purport to represent is comprised exclusively of South
Carolina citizens. The defendant is a citizen of South Caro-
lina, albeit also a citizen of Delaware. All the transactions
addressed by the complaint took place in South Carolina and
are alleged to have violated only South Carolina law.
Undoubtedly, the plaintiffs could have expanded their action
to fall under the provisions of CAFA, but, as the masters of
their complaint, they opted to bring their suit only under
South Carolina law and to name only those parties who were
South Carolina citizens involved in entirely South Carolina
transactions. This they were entitled to do. See Lincoln Prop.,
546 U.S. at 91.
The district court’s order of remand is accordingly
AFFIRMED.
AGEE, Circuit Judge, concurring in part, dissenting in part,
and concurring in the judgment:
I agree with the majority opinion that Advance America
fails to satisfy the requirements of 28 U.S.C. § 1332(d)(2)(A)
on the basis of its dual citizenship. I write separately because
I respectfully disagree, in part, with the conclusion in the
majority opinion that the language of the Complaint has lim-
ited the classes of plaintiffs to only South Carolina citizens as
of the time the Complaint was filed. Nonetheless, I concur in
the judgment of the majority because Advance America failed
to meet its burden of proof to establish the citizenship of any
plaintiff in a state other than South Carolina.
The Complaint sets out three classes of plaintiffs as fol-
lows:
Injunctive Relief Class: All citizens of South Caro-
lina who are domiciled in South Carolina and who
JOHNSON v. ADVANCE AMERICA 13
borrowed money from Defendant in the three years
preceding the filing of the complaint or who will
borrow money from Defendant in the future.
Damages Subclass One: All citizens of South Caro-
lina who borrowed money from Defendant in the
three years preceding the filing of this complaint
whose monthly obligations exceeded 55% of their
gross monthly income.
Damages Subclass Two: All citizens of South Caro-
lina who renewed a loan with Defendant by repaying
only the interest and received a new loan.
(J.A. 11) (emphasis added).
Advance America contends that these class definitions
include "any individual who (1) entered into a deferred pre-
sentment services agreement with Advance America and (2)
was at any time a South Carolina citizen." (Br. Appellant 17.)
Advance America then argues that the classes would include
plaintiffs "who borrowed money" from it while a South Caro-
lina citizen, but who thereafter became citizens of another
state before the Complaint was filed. The majority finds this
argument unpersuasive based on its reading of the classes as
defined in the Complaint and concludes that "if one of
Advance America’s customers had in fact established domi-
cile outside of South Carolina before the complaint was filed
. . . such customers would not be ‘citizens of South Carolina’
at the time the complaint was filed and therefore would not
be members of the proposed class." Supra at 9-10. For the
reasons that follow, I agree with the majority as to the Injunc-
tive Relief Class but disagree as to Damages Subclass One
and Damages Subclass Two (collectively, the "Damages Sub-
classes").
The plain language of the Complaint defining the Injunc-
tive Relief Class describes its members in the present tense,
14 JOHNSON v. ADVANCE AMERICA
that is, South Carolina citizens "who are domiciled in South
Carolina." (Emphasis added). This language establishes a
class of plaintiffs who are South Carolina citizens even
though the ultimate class membership is further restricted to
those South Carolina citizens "who borrowed money from
Defendant in the three years preceding the filing of the com-
plaint." If a person is not "domiciled in South Carolina" at the
time the Complaint was filed then that person, by definition,
cannot be a member of the Injunctive Relief Class.
The majority opinion correctly points out that the plaintiffs
are "masters of their complaint," supra at 10, and have con-
siderable leeway in defining who is, and is not, within the
class or classes of the Complaint. In this case, the plaintiffs
have circumscribed the membership of the Injunctive Relief
Class to include only South Carolina citizens, at least as of the
filing of the Complaint. However, for whatever reason, the
plaintiffs have not similarly delineated the members of the
Damages Subclasses.
The definition of the members of the Damages Subclasses
are not drawn in the present tense as is the Injunctive Relief
Class. The limiting phrase "who are domiciled in South Caro-
lina," or other similar denotation of present status, is missing.
Instead, the Damages Subclasses are defined in the past tense,
that is, South Carolina citizens "who borrowed money from
Defendant in the three years preceding the filing of this com-
plaint" or who "renewed a loan with Defendant." Thus, to be
a member of the Damages Subclasses, a person need only
have borrowed from Advance America over the last three
years, or renewed a loan, while a South Carolina citizen.
These past actions while a South Carolina citizen speak not at
all to that person’s subsequent status as a South Carolina citi-
zen at the time the Complaint was filed.
The plaintiffs, as master of their complaint, have defined
the members of the Damages Subclasses in a way that could
include members who were South Carolina citizens when they
JOHNSON v. ADVANCE AMERICA 15
initially borrowed or renewed a loan, but who ceased to be
South Carolina Citizens before the Complaint was filed. The
failure of the Complaint to place a certain temporal require-
ment on class membership leaves open the potential member-
ship to persons who were not South Carolina citizens when
the Complaint was filed, even though they were South Caro-
lina citizens when their transactions with Advance America
took place. If such persons with other than South Carolina cit-
izenship do exist in fact, then the minimal diversity require-
ments enunciated in CAFA would be met and jurisdiction in
the district court would be established. 28 U.S.C. § 1332(d)(2)
(2006).
However, as the majority opinion correctly notes, "the bur-
den of establishing jurisdiction remains with Advance Amer-
ica," supra at 7, 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, 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 sus-
tain its burden of proof was an affidavit declaring that certain
customers "changed their residence and, therefore, citizen-
ship." (J.A. 22.) As the majority recognizes in footnote 2, citi-
zenship is determined not by residence but by the jurisdiction
in which a citizen is domiciled. "[S]tate citizenship for pur-
poses 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 Car-
olina Oil Co., 145 F.3d 660, 663 (4th Cir. 1998) (internal cita-
tion omitted).
As Advance America’s only evidence of non South Caro-
lina citizenship is a possible change of residence, not domi-
16 JOHNSON v. ADVANCE AMERICA
cile, it fails to meet its burden of proof as a matter of law.
Accordingly, even though I disagree with the majority’s con-
clusion that the Complaint’s definition of the Damages Sub-
classes 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).