Struthers v. Merck & Co., Inc. et al

Filing 8

ORDER directing the defendants to amend 1 Notice of Removal to allegejurisdiction sufficiently, see 28 U.S.C. 1653; otherwise this lawsuit shall be remanded to state court. Amended Pleadings due by 2/24/2006. Signed by Judge Myron H. Thompson on 2/14/2006. (cc, )

Struthers v. Merck & Co., Inc. et al

Doc. 8

Case 2:06-cv-00127-MHT-SRW

Document 8

Filed 02/14/2006

Page 1 of 2

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

JAMES O. STRUTHERS, etc., Plaintiff, v. MERCK & CO., INC., a foreign Corporation, et al., Defendants.

) ) ) ) ) ) ) ) ) ) ) ORDER

CIVIL ACTION NO. 2:06cv127-MHT (WO)

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.

Dockets.Justia.com

Case 2:06-cv-00127-MHT-SRW

Document 8

Filed 02/14/2006

Page 2 of 2

Moore, et al., Moore's Federal Practice ¶ 8.03[5][b] at 8-10 (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 grounds for this court to assume removal jurisdiction of this matter. It is therefore the ORDER, JUDGMENT, and DECREE of the court that the defendants have until February 24, 2006, to amend the notice see of removal 28 U.S.C. to § allege 1653;

jurisdiction

sufficiently,

otherwise this lawsuit shall be remanded to state court. DONE, this the 14th day of February, 2006.

/s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE