APR, LLC v. American Aircraft Sales, Inc., et al

Filing 8

OPINION AND ORDER directing that the defendants American Aircraft Sales, Inc. and Jet Tolbert have until December 21, 2012, to amend the notice of removal to allege jurisdiction sufficiently, see 28 U.S.C. § 1653; otherwise this lawsuit shall be remanded to state court. Signed by Honorable Judge Myron H. Thompson on 12/10/12. (scn, )

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

APR, LLC,

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Plaintiff,
v.
AMERICAN AIRCRAFT SALES,
INC.; and JET TOLBERT,
individually, and as an
agent, servant, and/or
employee of American
Aircraft Sales, Inc.,
Defendants.

CIVIL ACTION NO.
3:12cv1019-MHT
(W0)

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).

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).

The allegations must show

that the citizenship of 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).
First,

the

removal

notice

here

is

insufficient

because it does not indicate the citizenship of a party
that is a ‘limited liability company’: plaintiff APR,
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 removal notice must therefore allege “the
citizenships of all the members of the limited liability
company.”

Id.

entities,

the

(And if the entity consists of several
removal

notice

must

reflect

the

citizenship, or citizenships, of each and every entity
based on the nature of that entity.)
Second,

28

U.S.C.

§

1332(c)

provides

that

a

corporation shall be deemed a citizen, first, of all
States by which it has been incorporated and, second,

2

of

the State where it has its principal place of business.
To invoke jurisdiction based on diversity in a case in
which a corporation is a party, it is thus necessary to
allege distinctly and affirmatively all the States by
which the corporation has been incorporated and the State
in which the corporation has its principal place of
business.

American

Motorists

Ins.

Co.

v.

American

Employers' Ins. Co., 600 F.2d 15, 16 and n.1 (5th Cir.
1979) (per curiam).
sufficiently

the

The removal notice fails to allege

citizenship

of

corporate

defendant

American Aircraft Sales, Inc.
Finally the
§

1332's

removal notice fails to meet 28 U.S.C.

requirements

because

the

notice

gives

the

"residence" rather than the "citizenship" of defendant
Jet Tolbert.

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).

3

***
It is therefore the ORDER, JUDGMENT, and DECREE of
the court that the defendants American Aircraft Sales,
Inc. and Jet Tolbert have until December 21, 2012, to
amend

the

notice

sufficiently,

see

of

removal

28

U.S.C.

to
§

allege
1653;

jurisdiction

otherwise

lawsuit shall be remanded to state court.
DONE, this the 10th day of December, 2012.

/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

this