Bank of America, N.A. v. Fulcrum Enterprises, L.L.C.

Filing

NON DISPOSITIVE UNPUBLISHED OPINION FILED. Judge: CES , Judge: CH , Judge: NJB Awaiting District Court Action deadline due on 08/28/2015 Case 14-20532 placed in abeyance for limited remand in 4:12CV313 from the Southern District of Texas [14-20532]

Case: 14-20532

Document: 00513059947
00513097668

Page: 1

Date Filed: 05/29/2015
06/29/2015

Jeremy Gaston
[e-mail]
713-658-9007 (direct & fax)

May 29, 2015
Via E-Filing
Office of the Clerk
United States Court of Appeals for the Fifth Circuit
600 S. Maestri Place
New Orleans LA 70130
Re:

Case No. 14-20532 (Bank of America, N.A. v. Fulcrum Enterprises, L.L.C.)

Dear Sir/Madam:
On April 29, 2015, this Court ordered my client, defendant-appellant Fulcrum
Enterprises, LLC (“Fulcrum”) to disclose the States of citizenship of its members for
purposes of determining whether the district court had diversity jurisdiction over this
matter.
I relayed this request to my client representative, Mr. Allan Groves. In addition,
because plaintiff-appellee Bank of America, N.A. filed its original complaint against
Fulcrum on February 1, 2012 (see ROA.11), I asked Mr. Groves to determine the
citizenship of Fulcrum’s members as of that date. See Grupo Dataflux v. Atlas Global
Group, L.P., 541 U.S. 567, 571 (2004) (time-of-filing rule). Mr. Groves investigated
and reported back as follows:
As of [February 1, 2012], the members of Fulcrum Enterprises, LLC were
citizens of the following States: Georgia, Nevada, New York, and North
Carolina.
See Declaration of Allan Groves ¶ 4 (attached); 28 U.S.C. § 1746 (allowing declarations
in lieu of affidavits).1 Because Bank of America, N.A. is a citizen of North Carolina, the
district court lacked diversity jurisdiction over this matter. 28 U.S.C. § 1332.
Sincerely,
/s/ Jeremy Gaston
Jeremy Gaston
Counsel for Appellant
Fulcrum Enterprises, L.L.C.
1

The numbering of the declaration’s paragraphs skips from 2 to 4, which is a typo.

Case: 14-20532

Document: 00513059947
00513097668

Page: 2

Date Filed: 05/29/2015
06/29/2015

Case: 14-20532

Document: 00513059947
00513097668

Page: 3

Date Filed: 05/29/2015
06/29/2015

CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing letter was served by
ECF on May 29, 2015 on the following counsel of record for appellee:
Michael J. McKleroy, Jr.
AKERMAN SENTERFITT, LLP
2001 Ross Avenue, Suite 2550
Dallas, TX 75201
/s/ Jeremy Gaston
Jeremy Gaston

2