Cavitt et al v. The Plumbing & Rooter Company, LLC et al (MAG2)

Filing 12

ORDER, JUDGMENT, and DECREE of the court that the removing party has until November 4, 2015, 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 10/28/2015. (kh, )

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

JOSEPH CAVITT and RACHEL
CAVITT,

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Plaintiffs,
v.
THE PLUMBING & ROOTER
COMPANY, LLC, d/b/a
Benjamin Franklin
Plumbing, a Georgia
Limited Liability
Corporation, and DIRECT
ENERGY US HOME SERVICES,
INC., an Ohio Profit
Corporation registered to
do business in Alabama,
Defendants.

CIVIL ACTION NO.
3:15cv722-MHT
(WO)

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,

allegations

654

(5th

must

Cir.

show

1975)

that

the

(per

curiam).

citizenship

The

of

plaintiff is different from that of each defendant.

each
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.
The

notice

gives

"citizenship"
Cavitt.

of

the
the

"residence"
plaintiffs,

rather
Joseph

than
and

the

Rachel

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).
3612 (3d ed.).

See 13E Fed. Prac. & Proc. Juris. §
This is particularly true where the

party is a member of the military, as the complaint
alleges plaintiff Joseph Cavitt was during the events
at issue in the case.
Juris.

§

3617

(3d

ed.)

See 13E Fed. Prac. & Proc.
(“Members

2

of

the

military

services

of

the

United

States

also

are

protected

against the involuntary loss of a domicile for purposes
of diversity of citizenship jurisdiction.”).
***
It is therefore the ORDER, JUDGMENT, and DECREE of
the court that the removing party has until November 4,
2015,

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 28th day of October, 2015.
/s/ Myron H. Thompson___
UNITED STATES DISTRICT JUDGE