BBK Tobacco & Foods LLP v. Green Planet Incorporated

Filing 6

ORDER that the defendant shall file an amended notice of removal in compliance with this Order no later than July 8, 2013. Signed by Senior Judge Paul G Rosenblatt on 6/25/2013. (LFIG)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 BBK Tobacco & Foods, LLP,, Plaintiff, 11 12 13 vs. Green Planet, Inc., Defendant. 14 15 ) ) ) ) ) ) ) ) ) ) ) No. CV-13-01247-PHX-PGR ORDER 16 The defendant removed this action on June 21, 2013 solely on the basis of 17 diversity of citizenship jurisdiction pursuant to 28 U.S.C. § 1332. Having reviewed 18 the defendant’s Notice of Removal of Action to determine if subject matter 19 jurisdiction exists in this Court, the Court finds that the notice of removal is facially 20 deficient because it fails to properly allege the existence of diversity of citizenship 21 jurisdiction. 22 The defendant has not met its jurisdictional pleading burden regarding the 23 citizenship of the plaintiff in that the notice of removal merely states that the plaintiff 24 is an Arizona limited liability partnership with its principal place of business in 25 Arizona. This allegation is insufficient as a matter of law because to properly plead 26 diversity jurisdiction when a partnership is a named party, the notice of removal must 1 affirmatively allege the citizenship of each individual partner, whether general or 2 limited, since a partnership is not a “citizen” for purposes of § 1332.1 Carden v. 3 Arkoma Associates, 494 U.S. 185 (1990). 4 The defendant has also not properly alleged its own citizenship since the 5 notice of removal merely states that it is a California corporation. Since a corporate 6 party is a citizen of the state by which it has been incorporated and of the state 7 where it has its principal place of business, 28 U.S.C. § 1332(c)(1), "an allegation 8 that a corporation is a citizen of a certain state (without more) is not an allegation of 9 fact, but a mere conclusion of law" that is inadequate to establish diversity 10 jurisdiction.2 Fifty Associates v. Prudential Insurance Co. of America, 446 F.2d 11 1187, 1190 (9th Cir. 1970). 12 In order to cure these jurisdictional pleading deficiencies, the Court will 13 require the defendant to file an amended notice of removal that properly and 14 affirmatively identifies each partner of the plaintiff and each partner’s citizenship, 15 and properly alleges its own state of incorporation and the state in which it has its 16 principal place of business. The defendant is advised that its failure to timely comply 17 with this order will result in the remand of this action without further notice for lack 18 / / / 19 1 20 21 22 23 Since only a corporation or an individual may be a citizen for purposes of § 1332, the amended notice of removal must set forth any sublayers of partners or other non-citizen entities that the plaintiff may have. If any of the plaintiff’s partners are individuals, their state of citizenship, not their state of residency, must be affirmatively alleged. 2 24 25 26 Although the complaint alleges that the defendant “maintains a place of business” in Riverside, California, that is not sufficient to cure the pleading deficiency in the notice of removal because the Court cannot determine from that allegation where the defendant has its principal place of business. -2- 1 2 3 4 of subject matter jurisdiction. Therefore, IT IS ORDERED that the defendant shall file an amended notice of removal in compliance with this Order no later than July 8, 2013. DATED this 25th day of June, 2013. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 -3-

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