McClave State Bank v. Hart et al

Filing 26

ORDER denying 6 Plaintiff's Motion to Remand. By Judge Walker D. Miller on 5/12/11.(mnf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
SENIOR JUDGE WALKER D. MILLER
Civil Action No. 11-cv-00975-WDM-MJW
McCLAVE STATE BANK, a Colorado corporation and Colorado state bank,
Plaintiff,
v.
LYNN HART, a New Mexico resident, and
TEXAS BEEF LTD d/b/a TEXAS BEEF CATTLE CO., a Texas limited partnership,
Defendants.

ORDER ON MOTION TO REMAND
Miller, J.
This case is before me on the Plaintiff’s Motion to Remand (ECF No. 6).
Defendants oppose the motion. Defendants removed this case to this Court on April 12,
2011 (ECF No. 1) on the basis of diversity jurisdiction, 28 U.S.C. § 1332. After Plaintiff
filed its motion to remand, Defendants sought and were granted leave by Magistrate
Judge Michael J. Watanabe to file an Amended Notice of Removal (ECF No. 20),
averring that Defendant Lynn Hart is a resident and citizen of New Mexico and that
Defendant Texas Beef Ltd (“Texas Beef”) and all of its partners are citizens of Texas.
Texas Beef has further provided affidavits from each of its partners in which the
individuals identify their residence in Texas, the length of residence there, and state that
they have no other residence and intend to continue to reside at these homes. Plaintiff
is a citizen of Colorado. There is no dispute that the amount in controversy is sufficient
to satisfy the requirements of 28 U.S.C. § 1332.

Plaintiff’s motion to remand was based on its assertion that the original Notice of
Removal was insufficient to demonstrate that Defendant Texas Beef is a citizen of
Texas because it alleged Texas Beef was “incorporated in Texas” when in fact it is a
limited partnership; this means that all the partners must be diverse. Carden v. Arkoma
Assocs., 494 U.S. 185, 185 (1990). This alleged defect has been cured in the Amended
Notice of Removal and affidavits. I am satisfied that Defendant has shown that all of the
partners of Texas Beef are citizens of Texas.1 I also note that to the extent the original
allegations of Texas Beef’s citizenship was defective by not including the citizenship of
its partners, the Amended Notice, allowed by Magistrate Judge Watanabe, is consistent
with 28 U.S.C. § 1653, which permits amendment of defective allegations of jurisdiction.
It is also consistent with the Tenth Circuit’s view that minor procedural defects should be
curable even after the expiration of the thirty-day removal period. Countryman v.
Farmers Ins. Exch., No. 11-1066 (10th Cir., May 10, 2011).
There does not appear to be any dispute regarding the citizenship of Plaintiff or
of Defendant Lynn Hart. Therefore, the allegations and evidence before me establish
that the parties are citizens of different states and the amount in controversy is sufficient

1

In its reply brief, Plaintiff argues that the Amended Notice of Removal is
insufficient because it establishes only the residences of the general and limited
partners of Texas Beef. I disagree. The Amended Notice and the affidavits together
establish that the individual partners are domiciled in Texas, as shown by their present
and, for several, their long-time residence there, the lack of other residence, and their
present intent to continue to reside there. Smith v. Cummings, 445 F.3d 1254, 1259-60
(10th Cir. 2006) (an individual's state citizenship is equivalent to domicile and to
establish domicile, “a person must be physically present in the state and intend to
remain there.”); State Farm Mut. Auto Ins. v. Dyer, 19 F.3d 514, 520 (10th Cir. 1994)
(“Residence alone is not the equivalent of citizenship, but the place of residence is
prima facie the domicile.”).
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to confer jurisdiction on this court pursuant to 28 U.S.C. § 1332.
Accordingly, it is ordered:
1.

Plaintiff’s Motion to Remand (ECF No. 6) is denied.

DATED at Denver, Colorado, on May 12, 2011.
BY THE COURT:

s/ Walker D. Miller
United States Senior District Judge

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