SunSouth Bank v. NashYork, LLC et al
Filing
26
OPINION AND ORDER; ORDER, JUDGMENT, and DECREE of the court that the dfts have until 1/4/2013, to amend the notice of removal to allege jurisdiction sufficiently, see 28 USC § 1653; otherwise this lawsuit. Signed by Honorable Judge Myron H. Thompson on 12/17/2012. (wcl, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, SOUTHERN DIVISION
SUNSOUTH BANK,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
NASHYORK, LLC; et al.,
Defendants.
CIVIL ACTION NO.
1:12cv918-MHT
(WO)
OPINION AND 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.
See
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.
See 28 U.S.C. § 1332; see also 2
James
Wm.
Moore,
et
al.,
Moore's
Federal
Practice
§ 8.03[5][b] at 8-16 (3d ed. 2006).
The removal notice is insufficient because it does not
indicate the citizenship of corporate plaintiff SunSouth
Bank.
The notice must allege the citizenship of both the
State of incorporation and where the corporation has its
See 28 U.S.C. § 1332(c)(2);
principal place of business.
American Motorists Ins. Co. v. American Employers' Ins.
Co., 600 F.2d 15, 16 and n.1 (5th Cir. 1979) (per curiam).
The removal notice is insufficient because it does not
indicate the citizenship of a party that is a ‘limited
liability company’: defendant NashYork, LLC.
“[L]ike a
limited partnership, a limited liability company is a
citizen of any state of which a member of the company is
a citizen.”
Rolling Greens MHP, L.P. v. Comcast SCH
Holdings L.L.C., 374 F.3d 1020, 1022 (11th Cir. 2004). The
notice must therefore allege “the citizenships of all the
members of the limited liability company.”
Id.
(And if
the entity consists of several entities, the complaint
2
must reflect the citizenship, or citizenships, of each and
every entity based on the nature of that entity.)
***
It is therefore the ORDER, JUDGMENT, and DECREE of the
court that the defendants have until January 4, 2013, 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 17th day of December, 2012.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?