Starnes Davis Florie, LLP v. GOS Operator LLC et al

Filing 3

Order directing the defendant by 7/17/2012 to file a supplemental memorandum in support of the Notice of Removal re: jurisdiction. Plaintiff's response is due by 7/24/2012. Signed by Chief Judge William H. Steele on 7/3/2012. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
STARNES DAVIS FLORIE, LLP,
Plaintiff,
v.
GOS OPERATOR, LLC, et al.,
Defendants.

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CIVIL ACTION 12-0387-WS-N

ORDER
This matter comes before the Court sua sponte on preliminary screening of the Notice of
Removal (doc. 1), filed by defendants on June 8, 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, defendants predicate 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.

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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 plaintiff is
“a limited liability partnership organized and existing under the laws of the State of Alabama”
(doc. 1, ¶ II(a).) It further states that the four defendant limited liability companies are
“organized and existing under the laws of the State of Florida” (in the case of defendants GOS
Operator, LLC, GOA Operator, LLC and GO ATM, LLC) and “organized and existing under the
laws of the State of Georgia” (in the case of defendant Mission Health of Georgia, LLC). (Doc.
1, ¶ II(b).) But that is not sufficient. For diversity of citizenship purposes, the law of this Circuit
provides that an unincorporated association (whether LLP or LLC) such as Starnes Davis, GOS
Operator, GOA Operator, GO ATM and Mission Health 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. Defendants’ Notice of Removal fails to identify
the citizenship of any of the LLP or LLC parties’ 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 acknowledges that plaintiff’s
Complaint does not specify a particular dollar value that is in dispute. However, defendants state
(with no elaboration or explanation) that “the amount in controversy in this matter exceeds
$75,000.” (Doc. 1, ¶ VI.) Nothing in the Complaint or in the Notice of Removal supports that
bare ipse dixit. A removing party invoking federal jurisdiction must do more than make a
blanket statement of the amount in controversy. Indeed, 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
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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
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 GOS Operator and its co-defendants believe that the amount in controversy is satisfied,
then they must explain why and make an appropriate evidentiary showing, inasmuch as nothing
in the Complaint would support such a finding. To date, however, they have done neither.
In light of the foregoing, defendants are ordered to file a supplemental memorandum,
supported by exhibits and authorities as appropriate, in support of their Notice of Removal on or
before July 17, 2012, addressing these defects. Plaintiff may file a response on or before July
24, 2012, at which time the jurisdictional issue will be taken under submission.
DONE and ORDERED this 3rd day of July, 2012.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

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