Mergs Unlimited, LLC v. BNSF Railway Company et al
OPINION AND ORDER granting 20 Motion to Remand by Chief Judge Marcia S. Krieger on 11/13/15. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Marcia S. Krieger
Civil Action No. 15-cv-01896-MSK-CBS
MERGS UNLIMITED, LLC,
BNSF RAILWAY COMPANY; and
UNION PACIFIC RAILROAD COMPANY,
OPINION AND ORDER GRANTING
MOTION TO REMAND
THIS MATTER comes before the Court on the Plaintiff Mergs Unlimited, LLC’s
Motion to Remand (#20) this case to the Colorado District Court for Logan County. The
Defendants, BNSF Railway Company and Union Pacific Railroad Company object. (#21)
The Plaintiff initiated this action on October 3, 2014 in the Colorado District Court for
Logan County, asserting claims for common-law negligence, trespass, and strict liability under
Colorado law, C.R.S. § 40-30-103. The Plaintiff seeks, among other things, compensatory
damages for injuries to its property allegedly caused by a fire that was ignited by a BNSF train.
According to the Complaint (#3), the fire burned approximately 182 acres of the Plaintiff’s
property, which was previously used for hunting, and caused substantial damage to vegetation
and wildlife habitats. As a result, the Complaint alleges that the property is no longer suitable
On September 1, 2015, the Defendants filed a Notice of Removal (#1) pursuant to 28
U.S.C. §§ 1441 and 1446. The Notice of Removal asserts that this Court has subject-matter
jurisdiction based on diversity of citizenship between the parties, 28 U.S.C. § 1332.
The Plaintiff filed a timely Motion to Remand (#20) the case to the state court. The
Plaintiff alleges that the Notice of Removal is defective because it is untimely under
§1446(b)(3), and thus the case must be remanded. Specifically, the Plaintiff contends that the
Defendants failed to file their Notice of Removal within 30 days of receiving “other papers”
from which they could have ascertained that the case was removable. The Defendants dispute
that they had notice of the amount in controversy until the Plaintiff provided an affirmative
statement of such amount on August 12, 2015.
Although the Motion to Remand is premised upon an alleged defect in timeliness, it is
unnecessary to address such issue. Upon review of the Complaint and the Notice of Removal,
the Court finds that there is no showing of complete diversity between the parties.
A civil action is removable only if the plaintiff could have originally brought the action in
federal court. 28 U.S.C. § 1441(a). In this case, removal is premised on diversity jurisdiction
under 28 U.S.C. § 1332(a). Diversity jurisdiction exists when the case involves a dispute
between citizens of different states, and the amount in controversy exceeds $75,000. 28 U.S.C. §
1332(a)(1). As the party invoking the federal court’s jurisdiction, the Defendant bears the
burden of establishing that the requirements for the exercise of diversity jurisdiction are met. See
Huffman v. Saul Holdings Ltd. P’ship, 194 F.3d 1072, 1079 (10th Cir. 1999). The Court is
required to remand “[i]f at any time before final judgment it appears that the district court lacks
subject matter jurisdiction.” 28 U.S.C. § 1447(c).
To meet the diversity requirement, there must be complete diversity between all plaintiffs
and all defendants. In other words, no defendant can be a citizen from the same state as any
plaintiff. Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005). In Siloam Springs Hotel, L.L.C. v.
Century Surety Co., 781 F.3d 1233 (10th Cir. 2015), the Tenth Circuit held that the citizenship of
a limited liability company is determined by reference to the citizenship of each and every one of
its members. Here, the Plaintiff is a limited liability company, but neither the Complaint nor the
Notice of Removal identifies the members of the Plaintiff or their citizenship. Without such
showing, diversity is not established. Consequently, the Court lacks subject-matter jurisdiction
over the claims asserted in this action and the case must be remanded to state court.
Accordingly, the Plaintiff’s Motion to Remand (#20) is GRANTED. The Clerk is
directed to REMAND the case to the Colorado District Court for Logan County.
Dated this 13th day of November, 2015.
BY THE COURT:
Marcia S. Krieger
Chief United States District Judge
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