Jernigan v. Kubota Corporation et al

Filing 8

ORDER, JUDGMENT, and DECREE of the court that the removing dft has until 10/31/2011, to amend the notice of removal to allege jurisdiction sufficiently, see 28 USC § 1653; otherwise this lawsuit shall be remanded to state court. Signed by Honorable Judge Myron H. Thompson on 10/20/2011. (wcl, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, SOUTHERN DIVISION

KENNETH EDWARD JERNIGAN, as
Personal Representative of
the Estate of Sarah Louise
Jernigan, deceased,
Plaintiff,
v.
KUBOTA CORPORATION, a
corporation; et al.,
Defendants.

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CIVIL ACTION NO.
1:11cv834-MHT
(WO)

ORDER
The

allegations

of

the

notice

of

removal

are

insufficient to invoke this court's removal jurisdiction
under 28 U.S.C. §§ 1332 (diversity of citizenship) 1441
(removal).

To

invoke

removal

jurisdiction

based

on

diversity, the notice of removal must distinctly and
affirmatively allege each party's citizenship.

McGovern

v. American Airlines, Inc., 511 F. 2d 653, 654 (5th Cir.
1975) (per curiam).

The allegations must show that the

citizenship of each plaintiff is different from that of
each defendant.

28 U.S.C. § 1332; see also 2 James Wm.

Moore, et al., Moore's Federal Practice ¶ 8.03[5][b] at 810 (3d ed. 1998).
Plaintiff has brought this lawsuit in his capacity as
personal representative for the estate of the decedent.
"[T]he legal representative of the estate of a decedent
shall be deemed to be a citizen only of the same State as
the decedent ...." 28 U.S.C. § 1332(c)(2).

Because the

notice of removal sets forth only the citizenship of the
personal representative and not of the decedent, the
notice does not adequately establish the ground for this
court to assume removal jurisdiction of this matter.
It is therefore the ORDER, JUDGMENT, and DECREE of the
court that the removing defendant has until October 31,
2011,

to

amend

the

notice

of

removal

to

allege

jurisdiction sufficiently, see 28 U.S.C. § 1653; otherwise
this lawsuit shall be remanded to state court.
DONE, this the 20th day of October, 2011.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE