Allen et al v. University View, I LLC et al

Filing 3

OPINION AND ORDER, it is the ORDER, JUDGMENT and DECREE of the court that plf Donald H. Allen Development, Inc.'s 1 MOTION to Remand to State Court is granted and that, pursuant to 28 USC 1447(c), this cause is remanded to the Circuit Court of Lee County, Alabama for want of subject-matter jurisdiction; directing the Clerk to take appropriate steps to effect the remand; also directing the Clerk to fax or email a copy of this order to the appropriate Lee County Circuit Clerk and to the State Judge who is handling the state-court proceedings; this case is closed. Signed by Honorable Judge Myron H. Thompson on 3/23/12. (Attachments: # 1 civil appeals checklist). Faxed, as directed, in order(djy, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, EASTERN DIVISION
DONALD H. ALLEN
DEVELOPMENT, INC.,

)
)
)
Plaintiff,
)
)
v.
)
)
UNIVERSITY VIEW, LLC, KATHY )
MATHEWS, and KATHY MATHEWS )
as personal representative )
of the Estate of Lindburgh )
Jackson,
)
)
Defendants.
)

CIVIL ACTION NO.
3:12cv257-MHT
(WO)

OPINION AND ORDER
Plaintiff Donald H. Allen Development, Inc. (“DAD”)
brought

this

breach-of-contract

case

in

state

court

against several defendants, including University View,
LLC, and Kathy Mathews.
removed

the

case

to

diversity-of-citizenship
§§ 1332, 1441.

Mathews, appearing pro se,

this

federal

court

jurisdiction.

based
28

on

U.S.C.

DAD now moves for remand arguing, among

other things, that there is not complete diversity.

For

the following reasons, that motion will be granted.
For purposes of removal pursuant to diversity-ofcitizenship jurisdiction, a removing defendant has the

burden

of

showing

(1)

that

the

citizenship

of

each

plaintiff is different from that of each defendant and
(2) that no defendant is a citizen of the forum state.
28 U.S.C. §§ 1332, 1441(b)(2); see also Lincoln Prop. Co.
v. Roche, 546 U.S. 81, 84, 89 (2005) (“Since Strawbridge
v.

Curtiss,

3

Cranch

267

(1806),

we

have

read

the

statutory formulation ‘between ... citizens of different
States’

to

require

complete

diversity

plaintiffs and all defendants.”).

between

all

Mathews’s notice of

removal is deficient on both fronts.

First, it plainly

states that the “Plaintiffs are citizens of Alabama and
defendants are citizens of Alabama and Florida.”
of Removal (Doc. No. 2) at 2.
difference

in

state

defendant

and

the

Although there would be a

citizenship
Alabama

Notice

between

the

Florida

plaintiff,

28

U.S.C.

§ 1332(a)(1) requires “complete diversity,” that is, no
plaintiff may be from the same state as any defendant see
Stillwell v. Allstate Ins. Co., 663 F.3d 1329, 1332 (11th
Cir.

2011);

therefore

the

2

presence

of

an

Alabama

plaintiff in a case with an Alabama defendant destroys
diversity-of-citizenship

jurisdiction.

Second,

as

Mathews freely admits, she is a citizen of Alabama.

By

statute, a civil action may not be removed on diversityof-citizenship grounds “if any of the parties in interest
properly joined and served as defendants is a citizen of
the State in which such action is brought.”
§ 1441(b)(2).

28 U.S.C.

This action was originally brought in an

Alabama court and therefore a citizen of Alabama, like
Mathews, cannot remove it to federal court on diversityof-citizenship grounds.
Finally, the court wants to make Mathews, who is
proceeding pro se, aware that the removal statute is not
to be used as a tactic to avoid state-court obligations.
The court strongly suggests that she consult with an
attorney before filing another notice of removal in this
case.

Any subsequent, frivolous removal will likely be

met with sanctions.
***

3

Accordingly, it is the ORDER, JUDGMENT, and DECREE of
the court that plaintiff Donald H. Allen Development,
Inc.’s motion to remand (doc. no. 1) is granted and that,
pursuant to 28 U.S.C. § 1447(c), this cause is remanded
to the Circuit Court of Lee County, Alabama for want of
subject-matter jurisdiction.
The

clerk

of

this

court

is

DIRECTED

to

take

appropriate steps to effect the remand.
The clerk of this court is also DIRECTED to fax or
email a copy of this order to the appropriate Lee County
Circuit Clerk and to the State Judge who is handling the
state-court proceedings.
This case is closed.
DONE, this the 23rd day of March, 2012.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE