McClain v. SSC Montgomery Cedar Crest Operating Company LLC, et al.
MEMORANDUM OPINION AND ORDER directing that the removing party has until November 14, 2014 to amend the notice of removal to allege jurisdiction sufficiently, 28 U.S.C. § 1653; otherwise this lawsuit shall be remanded to state court. Signed by Honorable Judge Myron H. Thompson on 11/7/14. (scn, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
KELVIN McCLAIN, as
Attorney in Fact for
SSC MONTGOMERY CEDAR CREST )
OPERATING COMPANY LLC, et )
CIVIL ACTION NO.
OPINION AND ORDER
jurisdiction based on diversity, the notice of removal
must distinctly and affirmatively allege each party's
McGovern v. American Airlines, Inc., 511
F. 2d 653, 654 (5th Cir. 1975) (per curiam).*
In Bonner v. Prichard, 661 F.2d 1206, 1209 (11th
Cir. 1981) (en banc), the Eleventh Circuit Court of
plaintiff is different from that of each defendant.
U.S.C. § 1332; see also 2 James Wm. Moore, et al.,
Moore's Federal Practice ¶ 8.03[b] at 8-10 (3d ed.
The notice of removal fails to meet this standard.
First, the notice alleges the "residence" rather than
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.
Union Barge Line 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 indicate the citizenship of two parties that
are ‘limited liability companies’: SSC Montgomery Cedar
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.
Dothan LLC. “[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.”
1020, 1022 (11th Cir. 2004).
The notice must therefore
limited liability company.”
And as stated above,
the notice does not properly allege the citizenship of
Finally, plaintiff has brought this lawsuit in his
capacity as personal representative for an incompetent
"[T]he legal representative of an infant
or incompetent shall be deemed to be a citizen only of
U.S.C. § 1332(c)(2).
Because the notice of removal
personal representative and not that of the incompetent
grounds for this court to assume removal jurisdiction
of this matter.
It is therefore the ORDER, JUDGMENT, and DECREE of
the court that the removing party has until November
jurisdiction sufficiently, 28 U.S.C. § 1653; otherwise
this lawsuit shall be remanded to state court.
DONE, this the 7th day of November, 2014.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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