Detroit Free Press Inc v. Slocumb Law Firm, LLC, et al

Filing 6

ORDER directing that the defendants show cause, if any there be, in writing by no later than November 20, 2012, as to why this cause should not be remanded to the Circuit Court of Lee County, Alabama, as further set out; further ORDERED that, if defe ndants believe that they can overcome the prohibition of subsection (b) of 28 U.S.C. § 1441, defendants are allowed until November 20, 2012, to amend the notice of removal to allege jurisdiction sufficiently, as further set out. Signed by Honorable Judge Myron H. Thompson on 11/13/12. (scn, )

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

DETROIT FREE PRESS, INC.,
d/b/a WUSA-TV,
Plaintiff,
v.
SLOCUMB LAW FIRM, LLC, and
MICHAEL W. SLOCUMB, an
individual,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

CIVIL ACTION NO.
3:12cv989-MHT
(WO)

OPINION AND ORDER
The

allegations

of

the

notice

of

removal

are

insufficient to invoke this court's removal jurisdiction
under 28 U.S.C. §§ 1332 (diversity of citizenship) and
1441 (removal).
Although 28 U.S.C. §

1441 provides for removal based

upon diversity of citizenship, subsection (b) of § 1441
precludes removal where one or more of the defendants is
a citizen of the State wherein the action is brought.
Subsection (b) specifically provides that any action other

than one based on federal-question jurisdiction "shall be
removable only if none of the parties in interest properly
joined and served as defendants is a citizen of the State
in which such action is brought."

Because it appears that

defendants Slocumb Law Firm, LLC, and Michael W. Slocumb
may be citizens of Alabama and because this lawsuit was
initiated in an Alabama court, it further appears that
subsection (b) precludes removal to this federal court.
Furthermore, to invoke 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).1

The allegations must show that the

citizenship of each plaintiff is different from that of
each defendant.
Moore, et al.,

28 U.S.C. § 1332; see also 2 James Wm.
Moore's Federal Practice ¶ 8.03[5][b] at

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

8-10 (3d ed. 1998).
this standard.

The notice of removal fails to meet

The notice gives the "residence" rather

than the "citizenship" of defendant Michael W. Slocumb.
An allegation that a party is a "resident" of a State is
not sufficient to establish that a party is a "citizen" of
Delome v. Union Barge Line Co., 444 F.2d 225,

that State.

233 (5th Cir.), cert. denied, 404 U.S. 995, 92 S.Ct. 534
(1971).2
The removal notice is also insufficient because it
does not indicate the citizenship of a party that is a
‘limited liability company’: defendant Slocumb Law Firm,
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.”

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.”

2.

Id.

(And if the entity consists of several

Id.
3

entities, the complaint must reflect the citizenship, or
citizenships, of each and every entity based on the nature
of that entity.)

***

Accordingly, it is ORDERED that the defendants show
cause, if any there be, in writing by no later than
November 20, 2012, as to why this cause should not be
remanded to the Circuit Court of Lee County, Alabama
because subsection (b) of 28 U.S.C. § 1441 precludes
removal where one or more of the defendants is a citizen
of the State wherein the action is brought.
Furthermore,
believe

that

it

they

is
can

ORDERED

that,

overcome

the

if

defendants

prohibition

of

subsection (b) of 28 U.S.C. § 1441, defendants are allowed
until November 20, 2012, to amend the notice of removal to
allege

jurisdiction

sufficiently,

4

28

U.S.C.

§

1653;

otherwise this case shall be remanded to the Circuit Court
of Lee County, Alabama.
DONE, this the 13th day of November, 2012.

/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE