Gaston v. TAMCO Property Management, LLC
MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 1/5/2017. (JLC)
2017 Jan-05 AM 09:13
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
) Case No.: 1:16-CV-1933-VEH
MANAGEMENT, LLC, d/b/a
MEADOW PARK APARTMENTS, )
Defendant TAMCO Property Management, LLC (“TAMCO”) removed this
landlord/tenant lawsuit from the Circuit Court of Calhoun County on December 1,
2016. (Doc. 1). Plaintiff Tomeka Gaston (“Ms. Gaston”) alleges that, after leasing an
apartment from TAMCO, mold started growing due to ineffective leak repairs (Doc.
1-1 at 3 ¶¶ 8-11)1 and eventually the property became uninhabitable. (Id. at 4 ¶ 19).
TAMCO’s Notice of Removal asserts that this court has the power to preside over the
action under 28 U.S.C. § 1332(a)(1), which authorizes federal jurisdiction for
disputes involving both a sufficient amount in controversy and complete diversity of
All page references to Doc. 1-1 correspond with the court’s CM/ECF numbering system.
citizenship between the adverse parties.
Pending before the court is a Motion for Remand to the Circuit Court of
Calhoun County, Alabama (Doc. 4) (the “Motion”) filed on December 8, 2016. Ms.
Gaston primarily contends that TAMCO cannot satisfy the amount in controversy
requirement applicable in diversity cases. (Doc. 4 at 1-2 ¶¶ 1-6). She also asserts that
TAMCO “has not met the prerequisites of removal under 28 U.S.C. § 1441” (Doc. 4
at 2 ¶ 7), but provides no further details.
As the concluding paragraph of TAMCO’s Notice of Removal reads, “if any
question arises as to the propriety of the removal of this action, the removing party
requests the opportunity to present a brief and oral argument in support of this
Court’s subject-matter jurisdiction.” (Doc. 1 at 6 ¶ 21). Under Appendix III of the
court’s uniform initial order (Doc. 2) entered on December 2, 2016, TAMCO’s
request for a briefing order was granted as TAMCO was afforded an opportunity to
file a brief in opposition to the Motion. (Id. at 23). However, Appendix III’s 14-day
deadline passed on December 22, 2016, and TAMCO filed nothing. For the reasons
stated below, the Motion is due to be granted in terms of the relief sought by Ms.
Gaston and otherwise is due to be termed as moot.2
Because the foregoing jurisdictional analysis is uncomplicated and because TAMCO did
not bother to file any opposition to the Motion (despite expressly asking for an opportunity to brief
the court and given subsequent permission to do so through the framework of the uniform initial
General Jurisdictional Principles
Because federal courts are courts of limited jurisdiction, “a federal court has
an independent obligation to review its authority to hear a case before it proceeds to
the merits.” Mirage Resorts, Inc. v. Quiet Nacelle Corp., 206 F.3d 1398, 1400-1401
(11th Cir. 2000); see also Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410
(11th Cir. 1999) (“Indeed, it is well settled that a federal court is obligated to inquire
into subject matter jurisdiction sua sponte whenever it may be lacking.” (citing
Fitzgerald v. Seaboard Sys. R.R., 760 F.2d 1249, 1251 (11th Cir. 1985) (per
Moreover, “[t]he jurisdiction of a court over the subject matter of a claim
involves the court’s competency to consider a given type of case, and cannot be
waived or otherwise conferred upon the court by the parties. Otherwise, a party could
‘work a wrongful extension of federal jurisdiction and give district courts power the
Congress denied them.’” Jackson v. Seaboard Coast Line R.R., 678 F.2d 992, 100001 (11th Cir. 1982) (quoting American Fire & Cas. Co. v. Finn, 341 U.S. 6, 18, 71
S. Ct. 534, 542, 95 L. Ed. 702 (1951)) (footnote and citation omitted). Furthermore,
“[b]ecause removal jurisdiction raises significant federalism concerns, federal courts
order), its collateral request to present oral argument is due to be denied.
are directed to construe removal statutes strictly.” Univ. of S. Ala., 168 F.3d at 411
(citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S. Ct. 868,
872, 85 L. Ed. 1214 (1941)).
Congress has decreed and the Supreme Court has confirmed that—with the
express exceptions of removed lawsuits naming federal officers/agencies or asserting
civil rights violations—orders of remand by district courts based upon certain
grounds, including in particular those premised upon lack of subject matter
jurisdiction, are entirely insulated from appellate review. More specifically, § 1447(d)
An order remanding a case to the State court from which it was removed
is not reviewable on appeal or otherwise, except that an order remanding
a case to the State court from which it was removed pursuant to section
1442 or 1443 of this title shall be reviewable by appeal or otherwise.
28 U.S.C. § 1447(d) (emphasis added); see also Kirchner v. Putnam Funds Trust, 547
U.S. 633, 642 , 126 S. Ct. 2145, 2154, 165 L. Ed. 2d 92 (2006) (recognizing that
“‘[w]here the [remand] order is based on one of the grounds enumerated in 28 U.S.C.
§ 1447(c), review is unavailable no matter how plain the legal error in ordering the
remand’” (quoting Briscoe v. Bell, 432 U.S. 404, 413 n.13, 97 S. Ct. 2428, 2434 n.13,
53 L. Ed. 2d 439 (1977))); Milton I. Shadur, Traps for the Unwary in Removal and
Remand, 33 no. 3 Litigation 43 (2007); Powerex Corp. v. Reliant Energy Servs., Inc.,
127 S. Ct. 2411, 2418 (2007) (holding that when “the District Court relied upon a
ground that is colorably characterized as subject-matter jurisdiction, appellate review
is barred by § 1447(d)”).
Diversity-Based Removal Jurisdiction
As indicated in the introductory section, TAMCO premises its removal upon
this court’s diversity jurisdiction. “Diversity jurisdiction exists where the suit is
between citizens of different states and the amount in controversy exceeds the
statutorily prescribed amount, in this case $75,000.” Williams v. Best Buy Co., 269
F.3d 1316, 1319 (11th Cir. 2001) (citing 28 U.S.C. § 1332(a)). Diversity jurisdiction
“requires complete diversity—every plaintiff must be diverse from every defendant.”
Palmer v. Hosp. Auth., 22 F.3d 1559,1564 (11th Cir. 1994). Therefore, removal
jurisdiction based upon diversity requires TAMCO to show: (1) a complete diversity
of citizenship between the plaintiff(s) and the defendant(s); and (2) satisfaction of the
amount in controversy requirement. See, e.g., Williams v. Best Buy Co., 269 F.3d
1316, 1319 (11th Cir. 2001) (“Because this case was originally filed in state court and
removed to federal court by Best Buy, Best Buy bears the burden of proving that
federal jurisdiction exists.”) (emphasis added).
TAMCO asserts in supporting its removal that the amount in controversy
component is satisfied because on April 2, 2015, Ms. Gaston “sent a demand letter
. . . offering to settle the case for $110,000 – well above the jurisdictional limit.”
(Doc. 1 at 4 ¶ 9). Concerning the contents of this written settlement offer, Ms. Gaston
counters that “[t]here is nothing in the Complaint in regard to [her] minor child” and
that “[t]he demand for the Plaintiff was $ 40,000.00 in the April 2, 2015, demand
letter.” (Doc. 4 at 2 ¶ 6); (see also Doc. 1-1 at 10 (“Based upon clear liability, Ms.
Gaston makes a demand in the amount of $40,000.00 for the belongings destroyed by
the mold, her services in caring for Elijiah [Gaston] due to the health issues, her own
health issues, emotional distress and pain and suffering.”)).
Without reaching the merits of the parties’ amount-in-controversy dispute or
addressing any potential procedural errors arising under §§ 1441, 1446, and/or 1447,
the court perceives a more straightforward substantive flaw with TAMCO’s Notice
of Removal. More particularly, the Notice of Removal does not satisfy the diversity
of citizenship requirement according to the standard enunciated by the Eleventh
Circuit in Rolling Greens MHP, L.P. v. Comcast SCH Holdings LLC, 374 F.3d 1020
(11th Cir. 2004). Specifically, Rolling Greens held that, in order to establish diversity,
if a limited liability company is a party, the names and states of domicile of each
member of the limited liability company must be listed. See id. at 1022 (joining sister
circuits in holding that “a limited liability company is a citizen of any state of which
a member of the company is a citizen”); see also Flintlock Const. Servs., LLC v. WellCome Holdings, LLC, 710 F.3d 1221, 1224 (11th Cir. 2013) (finding absence of
diversity for claims asserted by intervening LLC against original plaintiff LLC due
to shared New York citizenship of certain members of those opposing LLC parties).
Here, in contravention of this binding jurisdictional rule, TAMCO inadequately
alleges in its Notice of Removal:
The removing party is not, and was not, at the institution of this civil
action, or at any time intervening, a corporation of, or had its principal
place of business, in Alabama. The complaint states in Paragraph 2 that
the Defendant is a foreign corporation to the state of Alabama, and is a
Tennessee Corporation. (Exhibit “A”).
(Doc. 1 at 5 ¶ 12). Moreover, neither the remainder of TAMCO’s removal petition nor
the attachments (Doc. 1-1 (Ms. Gaston’s state court complaint marked as “Exhibit A”
to the Notice of Removal); Doc. 1-2 (Ms. Gaston’s settlement demand dated April 2,
2015, marked as “Exhibit B” to the Notice of Removal))3 identify who TAMCO’s
member or members are, much less delineate the state(s) of citizenship for its
member(s). TAMCO also did not respond to this court’s Rule 7.1 order (Doc. 3),
which might have disclosed this critical information.
Although TAMCO’s Notice of Removal references an “Exhibit C”, that particular
attachment, described as the “Notice with the Clerk of the Circuit Court of Calhoun County,
Alabama” (Doc. 1 at 6 ¶ 19), has not been filed into CM/ECF and, therefore, is not a part of the
Further, because this court cannot verify the presence of diversity of
citizenship, TAMCO has not carried its jurisdictional burden as the removing party.
See Best Buy, supra; see also McNutt v. Gen. Motors Acceptance Corp. of Indiana,
298 U.S. 178, 189, 56 S. Ct. 780, 785, 80 L. Ed. 1135 (1936) (providing that party
who is attempting to invoke the jurisdiction of the federal court has burden of
satisfactorily establishing its existence). As a result, the remand sought by Ms. Gaston
for lack of subject matter jurisdiction is due to be granted, albeit for reasoning
different than what she presented for consideration in her Motion.
Ms. Gaston’s Motion is due to be granted regarding the relief she seeks–a
remand to state court for lack of subject matter jurisdiction. Otherwise, the Motion
is due to be termed as moot. TAMCO’s request to present oral argument is due to be
denied as explained in n.2, supra. The court will enter a separate order remanding this
action to the Circuit Court of Calhoun County.
DONE and ORDERED this 5th day of January, 2017.
VIRGINIA EMERSON HOPKINS
United States District Judge
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