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,

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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