McClain v. SSC Montgomery Cedar Crest Operating Company LLC, et al.

Filing 11

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
Mervin McClain,

)
)
)
)
Plaintiff,
)
)
v.
)
)
SSC MONTGOMERY CEDAR CREST )
OPERATING COMPANY LLC, et )
al.,
)
)
Defendants.
)

CIVIL ACTION NO.
2:14cv1070-MHT
(WO)

OPINION AND ORDER
The

allegations

insufficient

to

jurisdiction

under

citizenship)

and

of

the

invoke
28

1441

U.S.C.

notice
this
§§

(removal).

of

removal

court's
1332
To

removal

(diversity
invoke

are

of

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

In Bonner v. Prichard, 661 F.2d 1206, 1209 (11th
Cir. 1981) (en banc), the Eleventh Circuit Court of

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. Moore, et al.,
Moore's Federal Practice ¶ 8.03[5][b] at 8-10 (3d ed.
1998).
The notice of removal fails to meet this standard.
First, the notice alleges the "residence" rather than
the

"citizenship"

Farrugia,

and

of

the

members

liability companies.

plaintiff,

of

the

defendant

defendant

Alan

limited

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 (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
Crest

Operating

Company

LLC

and

Comfort

Dental

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

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.”
MHP,

L.P.

v.

Comcast

SCH

Holdings

Rolling Greens

L.L.C.,

374

F.3d

1020, 1022 (11th Cir. 2004).

The notice must therefore

allege

all

“the

citizenships

of

limited liability company.”

the

Id.

members

of

the

And as stated above,

the notice does not properly allege the citizenship of
the

members

of

the

defendant

limited

liability

companies.
Finally, plaintiff has brought this lawsuit in his
capacity as personal representative for an incompetent
individual.

"[T]he legal representative of an infant

or incompetent shall be deemed to be a citizen only of
the

same

State

as

the

U.S.C. § 1332(c)(2).
attempts

to

set

infant

or

incompetent."

28

Because the notice of removal

forth

the

citizenship

of

only

the

personal representative and not that of the incompetent
person,

the

notice

does

not

3

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 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.
DONE, this the 7th day of November, 2014.

/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE