Cruce v. Whertec Mechanical, LLC

Filing 3

Order directing the defendant to file a supplemental memorandum regarding jurisdiction by 5/30/2012. Plaintiff's response is due by 6/6/2012. Signed by Chief Judge William H. Steele on 5/17/2012. Copy mailed to attorney William Pierce. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

JAMES R. CRUCE,
Plaintiff,
v.
WHERTEC MECHANICAL, LLC,
Defendant.

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CIVIL ACTION 12-0319-WS-N

ORDER
This matter comes before the Court sua sponte on preliminary screening of the Notice of
Removal (doc. 1) filed by defendant Whertec Mechanical, LLC, on May 16, 2012.
In light of its narrowly circumscribed jurisdiction, this Court bears an affirmative duty to
inquire sua sponte whenever it appears that subject matter jurisdiction may be lacking. See
Williams v. Chatman, 510 F.3d 1290, 1293 (11th Cir. 2007) (“Federal courts are obligated to
inquire into subject-matter jurisdiction sua sponte whenever it may be lacking.”) (citation and
internal quotation marks omitted).1 In the Notice of Removal, Whertec predicates federal
jurisdiction on the diversity provisions of 28 U.S.C. § 1332. “For federal diversity jurisdiction to
attach, all parties must be completely diverse … and the amount in controversy must exceed
$75,000.” Underwriter’s at Lloyd’s, London v. Osting-Schwinn, 613 F.3d 1079, 1085 (11th Cir.
2010) (citations omitted). The Notice of Removal leaves substantial unanswered questions as to
both of these requirements.

1

See also Bochese v. Town of Ponce Inlet, 405 F.3d 964, 975 (11th Cir. 2005)
(noting that “a federal court is obligated to inquire into subject matter jurisdiction sua sponte
whenever it may be lacking); Smith v. GTE Corp., 236 F.3d 1292, 1299 (11th Cir. 2001)
(“[B]ecause a federal court is powerless to act beyond its statutory grant of subject matter
jurisdiction, a court must zealously insure that jurisdiction exists over a case, and should itself
raise the question of subject matter jurisdiction at any point in the litigation where a doubt about
jurisdiction arises.”).

First, as to complete diversity of the parties, the Notice of Removal states that Whertec is
a “limited liability company organized under the laws of the State of Florida with a principal
place of business in Orange Park, Florida.” (Doc. 1, ¶ 5(b).) But that is not sufficient. For
diversity of citizenship purposes, the law of this Circuit provides that a limited liability company
such as Whertec is a citizen of any state of which any member of the entity is a citizen. See, e.g.,
Osting-Schwinn, 613 F.3d at 1086 (recognizing that, in contrast to corporations, “unincorporated
associations do not themselves have any citizenship, but instead must prove the citizenship of
each of their members to meet the jurisdictional requirements of 28 U.S.C. § 1332”); Rolling
Greens MHP, L.P. v. Comcast SCH Holdings L.L.C., 374 F.3d 1020, 1022 (11th Cir. 2004)
(holding that “like a limited partnership, a limited liability company is a citizen of any state of
which a member of the company is a citizen”). Thus, in order to allege diversity of citizenship
properly in a case involving an unincorporated business entity, “a party must list the citizenships
of all the members of the limited liability company.” Rolling Greens, 374 F.3d at 1022.
Whertec’s Notice of Removal fails to identify the citizenship of its members, and is therefore
inadequate to establish diversity jurisdiction. See Osting-Schwinn, 613 F.3d at 1092-93
(reversing and remanding case where district court had not required unincorporated association
to plead citizenship of all of its members in order to establish subject matter jurisdiction).
Second, as to amount in controversy, the Notice of Removal states that the “Complaint
demands damages in excess of $75,000.” (Doc. 1, ¶ 6.) Review of the pleading itself shows
otherwise. In fact, the Complaint does not specify the amount of damages sought at all, or
identify with any particularity the physical injuries of which plaintiff complains. Accordingly,
the factual and legal bases for Whertec’s contention that the Complaint “demands damages in
excess of $75,000” are unclear. In that regard, it is well-settled that “[i]f a plaintiff makes an
unspecified demand for damages in state court, a removing defendant must prove by a
preponderance of the evidence that the amount in controversy more likely than not exceeds the
… jurisdictional requirement.” Roe v. Michelin North America, Inc., 613 F.3d 1058, 1061 (11th
Cir. 2010) (citations and internal quotation marks omitted). In shouldering this burden, a
removing defendant “is not required to prove the amount in controversy beyond all doubt or to
banish all uncertainty about it.” Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 754 (11th Cir.
2010). Rather, the defendant may satisfy its burden by showing either that it is “facially apparent
from the pleading itself that the amount in controversy exceeds the jurisdictional minimum,” or
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that there is “additional evidence demonstrating that removal is proper.” Roe, 613 F.3d at 1061
(citations omitted). What the defendant may not do, however, is rely exclusively on “conjecture,
speculation, or star gazing” to establish the requisite amount in controversy. Pretka, 608 F.3d at
754. If Whertec believes it is “facially apparent” from the Complaint that the amount in
controversy is satisfied, then it must explain why. If Whertec has “additional evidence
demonstrating that removal is proper,” then it must come forward with such evidence. It has
done neither.
In light of the foregoing, defendant is ordered to file a supplemental memorandum,
supported by exhibits and authorities as appropriate, in support of its Notice of Removal on or
before May 30, 2012, addressing these defects. Plaintiff may file a response on or before June
6, 2012, at which time the jurisdictional issue will be taken under submission.2

DONE and ORDERED this 17th day of May, 2012.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

2

The Court is aware that defendant filed a Motion to Dismiss (doc. 2) in this
District Court contemporaneously with its Notice of Removal. In light of the jurisdictional
concerns set forth above, the undersigned will refrain from entering a briefing schedule on the
Motion to Dismiss until such time as the jurisdictional issue has been resolved. All parties will
be afforded a fair opportunity to be heard in response to that Motion if/when the citizenship and
amount-in-controversy issues set forth herein are resolved in favor of the existence of § 1332
jurisdiction.

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