Hudson et al v. Illinois Central Railroad Company et al

Filing 10

Order that the removing defendants file by 9/28/2017 a supplement to their notice of removal that corrects the deficiencies as set out in order. Signed by Magistrate Judge Katherine P. Nelson on 9/21/17. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
KIMBERLY HUDSON and THOMAS
EARL JACKSON, JR., as Temporary
Guardians of Kendric Jackson, an
Incapacitated person,
Plaintiffs,
v.
ILLINOIS CENTRAL RAILROAD
COMPANY, et al.,
Defendants.

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) CIVIL ACTION NO. 1:17-00424-N
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ORDER
This action is before the Court sua sponte on review of its subject matter
jurisdiction.1 This case was removed to this Court from the Circuit Court of Mobile
County, Alabama, by Defendants Illinois Central Railroad Company and David W.
Myers (collectively, “the Removing Defendants”) under 28 U.S.C. § 1441(a). (See Doc.
1). The Removing Defendants allege diversity of citizenship under 28 U.S.C. § 1332(a)
as the sole basis for the Court’s subject matter jurisdiction. See 28 U.S.C. § 1446(a) (“A
defendant or defendants desiring to remove any civil action from a State court shall file
in the district court of the United States for the district and division within which such

“It is . . . axiomatic that the inferior federal courts are courts of limited jurisdiction.
They are ‘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.” Univ. of S. Ala. v. Am. Tobacco
Co., 168 F.3d 405, 409 (11th Cir. 1999) (quoting Taylor v. Appleton, 30 F.3d 1365, 1367
(11th Cir. 1994)). Accordingly, “it is well settled that a federal court is obligated to
inquire into subject matter jurisdiction sua sponte whenever it may be lacking.” Id. at
410. “[A] court should inquire into whether it has subject matter jurisdiction at the
earliest possible stage in the proceedings.” Id. See also See Arbaugh v. Y&H Corp., 546
U.S. 500, 514, (2006) (“[C]ourts, including this Court, have an independent obligation to
determine whether subject-matter jurisdiction exists, even in the absence of a challenge
from any party.”).

1

action is pending a notice of removal…containing a short and plain statement of the
grounds for removal…”).
“Diversity jurisdiction requires complete diversity; every plaintiff must be
diverse from every defendant.” Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287
(11th Cir. 1998). Where, as here, a case is removed from state court, “[t]he burden of
establishing subject matter jurisdiction falls on the party invoking removal.” Univ. of
S. Alabama v. Am. Tobacco Co., 168 F.3d 405, 411–12 (11th Cir. 1999). Accord, e.g.,
City of Vestavia Hills v. Gen. Fid. Ins. Co., 676 F.3d 1310, 1313 (11th Cir. 2012) (“The
removing party bears the burden of proof regarding the existence of federal subject
matter jurisdiction.”). “A party removing a case to federal court based on diversity of
citizenship bears the burden of establishing the citizenship of the parties.” Rolling
Greens MHP, L.P. v. Comcast SCH Holdings L.L.C., 374 F.3d 1020, 1022 (11th Cir.
2004) (per curiam). See also, e.g., Ray v. Bird & Son & Asset Realization Co., Inc., 519
F.2d 1081, 1082 (5th Cir. 1975) (“The burden of pleading diversity of citizenship is upon
the party invoking federal jurisdiction . . .” (citing Mas v. Perry, 489 F.2d 1396 (5th Cir.
1974)).2
Upon review of the Notice of Removal and attached exhibits, the undersigned
finds that the Removing Defendants must correct the following deficiency in their
allegations supporting the parties’ citizenships:
1. The two named Plaintiffs, Kimberly Hudson and Thomas Earl Jackson, Jr., are
suing in a representative capacity on behalf of their son Kendric Jackson, an
“incapacitated person.” The notice of removal alleges: “At the time Plaintiffs

2 In

Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit
handed down prior to the close of business on September 30, 1981.

commenced this action, and at all times since, Plaintiffs were and are individuals
residing in Mobile County and citizens of the State of Alabama.” (Doc. 1 at 5, ¶
10). In support, the Removing Defendants cite to paragraphs 1 and 2 of the state
court complaint, which only allege that Hudson and Thomas Jackson reside in
Mobile County, Alabama. (Doc. 1-1 at 2). However, for purposes of diversity
jurisdiction under § 1332, “the legal representative of an infant or incompetent
shall be deemed to be a citizen only of the same State as the infant or
incompetent.” 28 U.S.C. § 1332(c)(2). The complaint is silent as to the residency
of Kendric Jackson, incapacitated (i.e., incompetent), and the notice of removal
is, at best, unclear as to whether the allegations regarding the citizenship of the
“Plaintiffs” includes Kendric Jackson.

Thus, the Removing Defendants must

amend their notice of removal to clearly allege Kendric Jackson’s citizenship for
purposes of § 1332(a).

2. When pleading Kendric Jackson’s citizenship, the Removing Defendants are
reminded that “[c]itizenship, not residence, is the key fact that must be

alleged . . . to establish diversity for a natural person.” Taylor v. Appleton,
30 F.3d 1365, 1367 (11th Cir. 1994) (emphasis added). See also Travaglio v.
Am. Exp. Co., 735 F.3d 1266, 1269 (11th Cir. 2013) (“As we indicated in
remanding this case for jurisdictional findings, the allegations in Travaglio’s
complaint about her citizenship are fatally defective. Residence alone is not
enough.”); Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330, 1342
n.12 (11th Cir. 2011) (“Ordinarily, the complaint must allege the citizenship,
not residence, of the natural defendants.”); Beavers v. A.O. Smith Elec. Prods.

Co., 265 F. App’x 772, 778 (11th Cir. 2008) (per curiam) (unpublished) (“The
plaintiffs’ complaint alleges only the residence of the nearly 100 plaintiffs,
not their states of citizenship. Because the plaintiffs have the burden to
affirmatively allege facts demonstrating the existence of jurisdiction and
failed to allege the citizenship of the individual plaintiffs, the district court
lacked subject matter jurisdiction on the face of the complaint.” (internal
citation and quotation omitted)); Crist v. Carnival Corp., 410 F. App'x 197,
200 (11th Cir. 2010) (per curiam) (unpublished) (“The allegation that Crist is
a ‘resident’ of Florida is insufficient for diversity jurisdiction purposes
because residency is not the equivalent of citizenship.”).

“Citizenship is

equivalent to ‘domicile’ for purposes of diversity jurisdiction.

A person’s

domicile is the place of his true, fixed, and permanent home and principal
establishment, and to which he has the intention of returning whenever he is
absent therefrom.” McCormick v. Aderholt, 293 F.3d 1254, 1257-58 (11th Cir.
2002) (citations, quotations, and footnote omitted). See also Travaglio, 735
F.3d at 1269 (“ ‘Citizenship is equivalent to “domicile” for purposes of
diversity jurisdiction.’ And domicile requires both residence in a state and
‘an intention to remain there indefinitely....’ ” (quoting McCormick, 293 F.3d
at 1257-58 (internal quotation marks omitted)) (internal citation omitted));
Mas, 489 F.2d at 1399 (“For diversity purposes, citizenship means domicile;
mere residence in the State is not sufficient.”).
“Defective allegations of jurisdiction may be amended, upon terms, in the trial or
appellate courts.” 28 U.S.C. § 1653. “[T]he failure to establish a party’s citizenship at

the time of filing the removal notice is a procedural, rather than jurisdictional, defect.”
Corporate Mgmt. Advisors, Inc. v. Artjen Complexus, Inc., 561 F.3d 1294, 1296 (11th
Cir. 2009) (quotation omitted). “If a party fails to specifically allege citizenship in their
notice of removal, the district court should allow that party ‘to cure the omission,’ as
authorized by § 1653.” Id. at 1297.
Upon consideration, the Removing Defendants are ORDERED to file and serve,
no later than Thursday, September 28, 2017, a supplement to their Notice of
Removal that corrects the above-described deficiency in their allegations supporting
diversity of citizenship under § 1332(a), or that alleges some alternative basis for
subject matter jurisdiction. The failure to comply with this order will result in remand
of this action sua sponte for lack of subject matter jurisdiction under 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 21st day of September 2017.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE