Adams et al v. Criswell

Filing 10

OPINION AND ORDER: it is the ORDER, JUDGMENT, and DECREE of the court that the dft has until 7/26/2013, to amend the notice of removal to allege jurisdiction sufficiently, see 28 USC § 1653; otherwise this cause shall be remanded to state court. Signed by Honorable Judge Myron H. Thompson on 7/16/2013. (wcl, )

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

LORRI ADAMS, individually,
et al.,

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Plaintiffs,
v.
WILLIAM ROY CRISWELL,
Defendant.

CIVIL ACTION NO.
1:13cv458-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 8-10 (3d ed. 1998).
The notice of removal fails to meet this standard.
The

notice

gives

the

"residence"

rather

"citizenship" of plaintiff Lorri Adams.

than

the

An allegation

that a party is a "resident" of a state is not sufficient
to establish that a party is a "citizen" of that state.
See Delome v. Union Barge Line Co., 444 F.2d 225, 233 (5th
Cir.), cert. denied, 404 U.S. 995, 92 S.Ct. 534 (1971).
In addition, plaintiffs Adams and Starr Lindley have
brought this lawsuit in their capacities as personal
representatives for infants or incompetents. "[T]he legal
representative of an infant or incompetent shall be deemed
to be a citizen only of the same State as the infant or
incompetent."

28 U.S.C. § 1332(c)(2).

Because the notice

of removal does not set forth the citizenship of infants
or incompetents P.P., E.F., and J.L., the notice does not
adequately establish grounds for this court to assume
removal jurisdiction of this matter.

2

***
It is therefore the ORDER, JUDGMENT, and DECREE of the
court that the defendant has until July 26, 2013, to amend
the notice of removal to allege jurisdiction sufficiently,
see 28 U.S.C. § 1653; otherwise this cause shall be
remanded to state court.
DONE, this the 16th day of July, 2013.

/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE