Lee v. Alabama CVS Pharmacy, L.L.C.

Filing 8

OPINION AND ORDER: it is the ORDER, JUDGMENT, and DECREE of the court that removing dft Alabama CVS Pharmacy, LLC, has until 11/10/2014, to amend the notice of removal to allege jurisdiction sufficiently, see 28 USC § 1653; otherwise this lawsuit shall be remanded to state court. Signed by Honorable Judge Myron H. Thompson on 10/27/2014. (wcl, )

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

HORATIO
R.
LEE,
as
Personal Representative of
the Estate of Daisy R. Lee
a/k/a Daisy Rudolph Lee,
deceased,
Plaintiff,
v.
ALABAMA
L.L.C.,

CVS

Defendant.

)
)
)
)
)
)
)
)
)
)
PHARMACY, )
)
)
)

CIVIL ACTION NO.
2:14cv913-MHT
(WO)

OPINION AND ORDER
The

allegations

insufficient

to

jurisdiction

under

of

the

invoke
28

U.S.C.

notice
this
§§

citizenship) and 1441 (removal).

of

removal

court's
1332

are

removal

(diversity

of

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).
allegations

must

show

that

the

citizenship

The

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 notice of removal fails to meet this standard
as

to

the

plaintiff.

Admittedly,

"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).

However, the

notice purports to give the "residence" rather than the
"citizenship" of decedent Daisy R. Lee.
that

a

party

is

a

"resident"

of

a

An allegation
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 (1971).

2

The removal notice is also insufficient because it
does not indicate the citizenship of a party that is a
‘limited
Pharmacy,

liability

company’:

L.L.C.

“[L]ike

defendant

a

limited

Alabama

CVS

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.”
is

another

entity,

the

Id.

complaint

If the member

must

reflect

the

citizenship of that entity based on the nature of that
entity.

The allegation of citizenship as to Alabama

CVS Pharmacy, L.L.C.’s sole member, CVS Pharmacy, Inc.,
a

corporation,

is

not

sufficient.

For

corporate

citizenship, the notice must allege both the State of
incorporation
principal

and

place

where
of

the

business.
3

corporation
See

has
28

its

U.S.C.

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

Therefore, the notice must be

amended to allege both CVS Pharmacy, Inc.’s State of
incorporation and where it has its principal place of
business.

***
It is therefore the ORDER, JUDGMENT, and DECREE of
the court that removing defendant Alabama CVS Pharmacy,
L.L.C.,

has

until

November

10,

2014,

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 27th day of October, 2014.
/s/ Myron H. Thompson____
UNITED STATES DISTRICT JUDGE