McCook v. Southeast Alabama Regional Healthcare Authority et al

Filing 3

OPINION AND ORDER directing that the removing defendants Show Cause, if any there be, in writing by no later than 10/14/2011, as to why this cause should not be remanded to the Circuit Court of Barbour County, Al, as further set out in order; further ORDERING that if the removing defendants believe that they can overcome the prohibition of subsection (b) of 28 U.S.C. 1441, they are allowed until 10/14/2011 to amend the notice of removal to allege jurisdiction sufficiently, as further set out in order. Signed by Honorable Judge Myron H. Thompson on 10/3/11. (djy, )

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

PATRICIA KEY McCOOK, as
Administratrix of the
Estate of William Tony
McCook, Deceased,

)
)
)
)
)
Plaintiff,
)
)
v.
)
)
SOUTHEAST ALABAMA REGIONAL )
HEALTH CARE AUTHORITY
)
d/b/a Medical Center
)
Barbour; et al.,
)
)
Defendants.
)

CIVIL ACTION NO.
2:11cv819-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).
Although § 1441 provides for removal based upon
diversity

of

citizenship,

subsection

(b)

of

§

1441

precludes removal where one or more of the defendants is
a citizen of the State wherein the action is brought.

Subsection (b) specifically provides that any action
other than one presenting a federal-question "shall be
removable

only

if

none

of

the

parties

in

interest

properly joined and served as defendants is a citizen of
the State in which such action is brought."

Because it

appears that most, or even all, of the defendants are
citizens

of

Alabama

and

because

this

lawsuit

was

initiated in an Alabama court and removed to this court
based on diversity jurisdiction, the court is concerned
that subsection (b) precludes removal to this federal
court.
Furthermore, 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).1

The allegations must show that the

1. In Bonner v. Prichard, 661 F.2d 1206, 1209 (11th
Cir. 1981) (en banc), the Eleventh Circuit Court of
Appeals adopted as binding precedent all of the decisions
of the former Fifth Circuit handed down prior to the
close of business on September 30, 1981.
2

citizenship of each plaintiff is different from that of
each defendant.
Moore, et al.,

28 U.S.C. § 1332; see also 2 James Wm.
Moore's Federal Practice ¶ 8.03[5][b] at

8-10 (3d ed. 1998).

The notice of removal fails to meet

this standard in two ways.
First, "the 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).

Moreover, 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.

Delome v. Union Barge Line Co.,

444 F.2d 225, 233 (5th Cir.), cert. denied, 404 U.S. 995,
92 S.Ct. 534 (1971).2

The notice gives the "residence"

rather than the "citizenship" of decedent William Tony
McCook, for whose estate the plaintiff seeks relief as an
administratrix.
Second, the removal notice is insufficient because it
does

not

indicate

the

Ronald

G.

defendant:

2.

Id.

citizenship
Rosen,

of

M.D.

a

corporate

Professional

Corporation.

The notice must allege the citizenship of

both the State of incorporation and where the corporation
has

its

principal

place

of

business.

28

U.S.C.

§ 1332(c)(2); American Motorists Ins. Co. v. American
Employers' Ins. Co., 600 F.2d 15, 16 and n.1 (5th Cir.
1979) (per curiam).3
***
Accordingly,

it

is

ORDERED

that

the

removing

defendants show cause, if any there be, in writing by no
later than October 14, 2011, as to why this cause should
not be remanded to the Circuit Court of Barbour County,
Alabama

because

subsection

(b)

of

28

U.S.C.

§

1441

precludes removal where one or more of the defendants is
a citizen of the State wherein the action is brought;
otherwise, this case shall be remanded.
Furthermore, it is ORDERED that, if the removing
defendants believe that they can overcome the prohibition
of subsection (b) of 28 U.S.C. § 1441, they are allowed

3.

Id.
4

until October 14, 2011, to amend the notice of removal to
allege jurisdiction sufficiently, 28 U.S.C. § 1653, that
is,

to

allege

the

"citizenship"

rather

than

the

"residence" of decedent William Tony McCook and to allege
both the State of incorporation and the principal place
of

business

of

defendant

Ronald

G.

Rosen,

M.D.

Professional Corporation; otherwise, this case shall be
remanded.
DONE, this the 3rd day of October, 2011.

/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE