Ashburn Family Properties LLC v. EBR Huntsville, LLC et al
MEMORANDUM OPINION AND ORDER that the 18 MOTION to Remand to State Court is DENIED. Signed by Judge C Lynwood Smith, Jr on 8/13/2015. (AHI) Modified on 8/13/2015 (LCW, ).
2015 Aug-13 AM 08:10
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
EBR HUNTSVILLE, LLC,
MANAGEMENT, INC., AT
HOME GROUP, INC., and AT
HOME STORES, LLC,
Civil Action No. 5:15-cv-00650-CLS
MEMORANDUM OPINION AND ORDER
Plaintiff, Ashburn Family Properties, LLC, commenced this action in the
Circuit Court of Madison County, Alabama, against defendants, EBR Huntsville,
LLC; EBL&S Property Management, Inc.; At Home Group, Inc.; and, At Home
Stores, LLC. Plaintiff’s state-court complaint sought a judgment declaring that a
lease and sub-lease are void and asserted a breach of contract claim.1 Defendants
removed the action to this court on April 17, 2015.2 The action presently is before
Doc. no. 1-2 (State Court Complaint) ¶ ¶ 22-34.
Doc. no. 1 (Notice of Removal). This court has stayed defendant At Home Group, Inc.’s
motion to dismiss and the motions for summary judgment filed by defendants EBR Huntsville, LLC,
and EBL&S Property Management, Inc., pending resolution of the present motion to remand. Doc.
the court on plaintiff’s motion to remand under 28 U.S.C. § 1332.3
Plaintiff contends that defendants failed to establish complete diversity of
citizenship, and failed to include all state court pleadings and process with the notice
I. LEGAL STANDARDS GOVERNING MOTIONS TO REMAND
Federal district courts are tribunals of limited jurisdiction, “empowered to hear
only those cases within the judicial power of the United States as defined by Article
III of the Constitution,’ and which have been entrusted to them by a jurisdictional
grant authorized by Congress.” University of South Alabama v. The American
Tobacco Co., 168 F.3d 405, 409 (11th Cir. 1999) (quoting Taylor v. Appleton, 30
F.3d 1365, 1367 (11th Cir. 1994)). Accordingly, an “Article III court must be sure
of its own jurisdiction before getting to the merits” of any action. Ortiz v. Fibreboard
Corp., 527 U.S. 815, 831 (1999) (citing Steel Co. v. Citizens for a Better
Environment, 523 U.S. 83, 88-89 (1998)). A removing defendant bears the burden
of proving that federal jurisdiction exists. See, e.g., Leonard v. Enterprise Rent A
Car, 279 F.3d 967, 972 (11th Cir. 2002); Williams v. Best Buy Co., 269 F.3d 1316,
1319-20 (11th Cir. 2001)); Kirkland v. Midland Mortgage Co., 243 F.3d 1277, 1281
Doc. no. 18 (Motion to Remand).
Id. at 2.
n.5 (11th Cir. 2001) (“[T]he burden is on the party who sought removal to
demonstrate that federal jurisdiction exists.”) (citing Tapscott v. MS Dealer Service
Corp., 77 F.3d 1353, 1356 (11th Cir. 1996), overruled on other grounds by Cohen v.
Office Depot, Inc., 204 F.3d 1069 (11th Cir. 2000)). Accordingly, removal statutes
must be construed narrowly, and “all uncertainties as to removal jurisdiction are to
be resolved in favor of remand.” Russell Corp. v. American Home Assurance Co.,
264 F.3d 1040, 1050 (11th Cir. 2001) (citing Burns v. Windsor Insurance Co., 31
F.3d 1092, 1095 (11th Cir. 1994)). Further, the court must focus upon jurisdictional
facts alleged on the date the case was removed from state court. See, e.g., Burns, 31
F.3d at 1097 n.13 (“Jurisdictional facts are assessed on the basis of plaintiff’s
complaint as of the time of removal.”) (emphasis in original) (citations omitted); see
also, e.g., Leonard, 279 F.3d at 972 (same).
Diversity of Citizenship
Defendants contend that this court enjoys jurisdiction over this action pursuant
to the diversity statute. See 28 U.S.C. § 1332(a). That statute requires complete
diversity, meaning each plaintiff is of diverse citizenship from each defendant.5
Defendants have proven, by a preponderance of the evidence, that the amount in
controversy in this case exceeds the statutory minimum. See Doc. no. 1, at 8 (“In this action, the
value of the ‘object of the litigation’ is the value of the Lease and Sublease that Plaintiff seeks to
void. In this case, considering the Sublease alone, the amount of rent due is $36,833.33 per month,
Triggs v. John Crump Toyota, 154 F.3d 1284, 1287 (11th Cir. 1998).
Defendants initially determined the citizenship of plaintiff, Ashburn Family
Properties, LLC, and two of the defendants, At Home Stores, LLC, and EBR
Huntsville, LLC, as if they were corporations, rather than limited liability companies.
A corporation is a citizen of both the state in which it is incorporated and the state
where its principal place of business is located. Cabalceta v. Standard Fruit Co., 883
F.2d 1553, 1559 (11th Cir. 1989). “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 Eleventh Circuit dictates a liberal approach with regard to allowing
defendants to correct deficiencies in a notice of removal. See Corporate Management
Advisors, Inc. v. Artjen Complexus, Inc., 561 F.3d 1294, 1297 (11th Cir. 2009)
(holding that, if a plaintiff moves to remand because of a defendant’s failure to
adequately allege diversity of citizenship in the notice of removal, the “district court
should allow [the defendant] to cure the omission”) (internal quotations omitted)
(alterations supplied); see also Payroll Management, Inc. v. Lexington Insurance
Co., 566 F. App’x 796, 803 (11th Cir. 2004) (permitting defendants to amend their
with rent increasing in annual increments. . . .When considered in conjunction with the rent due
under the Lease, which currently is at $32,000 annually, and set to increase for the remaining 54
years in the 99-year Lease term. . . , a preponderance of the evidence indicates that the amount in
controversy, is more than likely to exceed $75,000.00.”) (emphasis in original).
removal notice to properly allege citizenship).
The amended notice of removal shows that plaintiff, Ashburn Family
Properties, LLC, has one member: the Estate of James Cecil Ashburn.6 As stated
previously, the citizenship of a limited liability company is determined by the
citizenship of its members. See Rolling Greens MHP, L.P., 374 F.3d at 1022.
Moreover, the citizenship of an estate is that of the decedent. Moore v. North
America Sports, Inc., 623 F.3d 1325, 1327 n.2 (11th Cir. 2010). James Cecil Ashburn
was a citizen of Alabama at the time of his death.7 Therefore, Ashburn Family
Properties, LLC, is a citizen of Alabama.
Defendants also corrected the citizenship of the two limited liability company
defendants in the amended notice of removal.8 Defendant At Home Stores, LLC, has
one member: At Home Companies, LLC.9 At Home Companies, LLC, in turn, has
one member: Home Holding III, Inc., a Delaware corporation having its principal
place of business in Texas.10 Therefore, At Home Stores, LLC, is a citizen of
Delaware and Texas.
Defendant EBR Huntsville, LLC, has two members: Buster, Inc., and NPAEP
Doc. no. 23-1, at 2.
Id. at 2-4.
Id. at 2-3.
Id. at 3.
of Delaware, LLC.11 Buster, Inc., is a Delaware corporation with its principal place
of business in Pennsylvania.12 NPAEP of Delaware, LLC, has two members:
National Property Management Corporation and the Edward Lipkin Grantor Trust.13
National Property Management Corporation is a Nevada corporation with its principal
place of business in Pennsylvania.14 The settlor of the Edward Lipkin Grantor Trust
is a Pennsylvania citizen; each of the three trustees is a Pennsylvania citizen; and, one
beneficiary is from Florida, and the other beneficiary is from New York.15
Under Eleventh Circuit law, “the citizenship of trust fund members is
determinative of the existence of diversity of citizenship.” Laborers Local 938 Joint
Health & Welfare Trust Fund v. B.R. Starnes Co., 827 F.2d 1454, 1457 (11th Cir.
1987) (emphasis added). Whether “trust fund members” includes both trustees and
beneficiaries is of no consequence here, because the settlor, trustees, and beneficiaries
— i.e., all possible “trust fund members” — are of diverse citizenship from plaintiff,
an Alabama citizen.
As defendants stated in both their notice of removal and amended notice of
removal, defendant EBL&S Property Management, Inc., is a citizen of Delaware and
Doc. no. 23-1, at 3.
Id. at 3-4.
Pennsylvania.16 Defendant At Home Group, Inc., is a citizen of Delaware and
Texas.17 All four defendants are diverse from plaintiff, an Alabama citizen, thereby
satisfying the statutory requirement of complete diversity.
Accordingly, the motion to remand for lack of complete diversity of citizenship
is due to be denied.
Failure to Include the Entire State Court File with the Notice of Removal
Plaintiff contends that this case should be remanded because At Home Stores
“fail[ed] to include all parts of the state court file” in the notice of removal.18
Defendants provided copies of all documents served upon them in their amended
notice of removal.19
Accordingly, the motion to remand on that ground is due to be denied.
In accordance with the foregoing, it is ORDERED that the motion to remand
EBL&S Property Management, Inc., is a Delaware corporation with its principal place of
business in Pennsylvania. Doc. no. 23-1 (Amended Notice of Removal), at 4.
At Home Group, Inc., is a Delaware corporation with its principal place of business in
Texas. Doc. no. 23-1 (Amended Notice of Removal), at 2.
Doc. no. 18 (Motion to Remand), at 6 (alteration supplied).
Doc. no. 23-1 (Amended Notice of Removal).
DONE and ORDERED this 12th day of August, 2015.
United States District Judge
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