Burke v. USAA General Indemnity Company

Filing 5

Order that USAA GIC is to establish by 8/9/2013 the citizenship of Burke as of the date this matter was removed. Signed by Magistrate Judge Katherine P. Nelson on 7/26/2013. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BELINDA BURKE,
Plaintiff,
v.
USAA GENERAL INDEMNITY
COMPANY,
Defendant.

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CA 13-00369-N

ORDER
This action was removed from the Circuit Court of Mobile County, Alabama
on July 19, 2013 (see Doc. 1) on the basis of diversity jurisdiction (see id., ¶ 3 (“This
action could have been filed with this Court pursuant to 28 U.S.C. § 1332, in that
there is complete diversity of citizenship between Burke and USAA GIC, and the
amount in controversy exceeds the sum of $75,000, exclusive of interest and costs.”).
USAA GIC filed its answer (Doc. 4) on July 25, 2013.
Upon a review of the state-court complaint, the removal petition, and the
answer, the Court is not satisfied that diversity jurisdiction exists. Nowhere in the
pleadings before this Court is a statement as to the citizenship of the plaintiff.
(Compare Doc. 1-1 at 6, state-court complaint (“Plaintiff Belinda Burke . . . is an
individual resident of Mobile County, Alabama.), with Doc. 1, ¶ 5 (“Burke is a
resident of Alabama), with Doc. 4, ¶ 1 (“Upon information and belief, admitted
[that Burke is a resident of Mobile County, Alabama].”) (emphases added).)

The allegation that Burke is a “resident” of Alabama is insufficient for
diversity jurisdiction purposes because residency is not the equivalent of
citizenship. See, e.g., Congress of Racial Equal. v. Clemmons, 323 F.2d 54, 58 (5th
Cir.1963) (“Diversity of citizenship, not of residence, is required under 28 U.S.C.A. §
1332. Wherever jurisdiction is predicated upon the citizenship (or alienage) of the
parties, it should be noted that since residence is not the equivalent of citizenship,
an allegation that a party is a resident of a certain state or foreign country is not a
sufficient allegation of his citizenship.” (quotation and citation omitted)).
Therefore, consistent with this Court’s “affirmative duty to question subject
matter jurisdiction even when the parties have not done so[,]” Personnel Servs.
Unlimited, Inc. v. SFI Holdings, LLC, Civil Case No. 1:12cv155, 2013 WL 458161,
at *1 (W.D.N.C. Feb. 6, 2013) (citations omitted), USAA GIC is ORDERED to
establish, no later than August 9, 2013, the citizenship of Burke as of the date this
matter was removed. See, e.g., Rolling Greens MHP, L.P. v. Comcast SCH Holdings
L.L.C., 374 F.3d 1020, 1021-22 (11th Cir. 2004) (per curiam) (“A party removing a
case to federal court based on diversity of citizenship bears the burden of
establishing the citizenship of the parties.” (citing Williams v. Best Buy Co., Inc.,
269 F.3d 1316, 1319 (11th Cir. 2001) (“Because this case was originally filed in state
court and removed to federal court by [the Defendant], [the Defendant] bears the
burden of proving that federal jurisdiction exists.”); Ray v. Bird & Son & Asset
Realization Co., 519 F.2d 1081, 1082 (5th Cir. 1975) (“The burden of pleading
diversity of citizenship is upon the party invoking federal jurisdiction, and if

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jurisdiction is properly challenged, that party also bears the burden of proof.”)))); cf.
28 U.S.C. § 1447(c) (“If at any time before final judgment it appears that the district
court lacks subject matter jurisdiction, the case shall be remanded.”).
DONE and ORDERED this the 26th day of July, 2013.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

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