C.D. v. Alabama CVS Pharmacy, L.L.C. et al

Filing 11

OPINION AND ORDER directing that the removing defendant has until 11/7/2014 to amend the notice of removal to allege jurisdiction sufficiently, as further set out in order. Signed by Honorable Judge Myron H. Thompson on 10/27/14. (djy, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
C.D., a Minor, By and
Through Her Mother and
Next Friend, Cynthia
Davenport,

)
)
)
)
)
Plaintiff,
)
)
v.
)
)
COCA-COLA REFRESHMENTS
)
USA, INC., and ALABAMA CVS )
PHARMACY LLC,
)
)
Defendants.
)

CIVIL ACTION NO.
2:14cv952-MHT
(WO)

OPINION AND ORDER
The

allegations

insufficient

to

jurisdiction

under

of

the

notice

invoke
28

this

U.S.C.

§§

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

of

The
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.

First, plaintiff C.D., a minor,

has brought this lawsuit through her mother.

"[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 removal notice attempts to set forth the
citizenship of only the personal representative (C.D.’s
mother) and not that of the infant or incompetent (C.D.
herself),

the

notice

does

not

adequately

establish

grounds for this court to assume removal jurisdiction
of this matter.
the

"residence"

party.

Second, the notice purports to give
rather

than

the

"citizenship"

of

a

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

2

Co., 444 F.2d 225, 233 (5th Cir.), cert. denied, 404
U.S. 995 (1971).
The removal notice is also insufficient because it
does not properly indicate the citizenship of a party
that is a corporation: defendant Coca-Cola Refreshments
USA, Inc. The notice must allege both the State of
incorporation
principal

and

where

place

of

the

corporation

business.

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

liability

Pharmacy, L.L.C..

company’:

defendant

Alabama

CVS

“[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

3

of the limited liability company.”
is

another

entity,

the

complaint

Id.

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 the reason given
above.
***
It is therefore the ORDER, JUDGMENT, and DECREE of
the

court

that

the

removing

defendant

has

until

November 7, 2014, to amend the notice of removal to
allege jurisdiction sufficiently, see 28 U.S.C. § 1653;
otherwise

this

lawsuit

shall

be

remanded

to

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

state