Kilpatrick v. Winfield Solutions, LLC et al

Filing 24

ORDER re 1 Notice of Removal filed by Winfield Solutions, LLC, Land O'Lakes, Inc. Defendants shall supplement the Notice of Removal in accordance with the above on or before April 27, 2017, or otherwise show cause by this date why th is case should not be remanded for failure to establish subject-matter jurisdiction based on the presence of diversity jurisdiction at the time of removal. Failure to comply with this Order will result in this case being remanded without further notice. Signed by Judge Sheri Polster Chappell on 4/14/2017. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JAMES R. KILPATRICK and
KILPATRICK CANE PARTNERSHIP,
Plaintiffs,
v.

Case No: 2:16-cv-472-FtM-99MRM

WINFIELD SOLUTIONS, LLC and
LAND O’LAKES, INC.,
Defendants.
/
ORDER1
This matter comes before the Court on review of Defendants’ Notice of Removal
(Doc. 1) filed on June 16, 2016. Subject-matter jurisdiction is premised on the presence
of a diversity of citizenship between the parties. (Id. at ¶ 4.)
Federal courts are courts of limited jurisdiction and are obligated to inquire about
jurisdiction sua sponte whenever it may be lacking. See Kokkonen v. Guardian Life Ins.
Co. of Am., 511 U.S. 375, 377 (1994); Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405,
410 (11th Cir. 1999) (citations omitted). A defendant may remove a civil case from state
court provided the case could have been brought in federal court.

See 28 U.S.C.

§ 1441(a). Federal courts have original jurisdiction if the amount in controversy exceeds

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$75,000, exclusive of interest and costs, and there is complete diversity of citizenship
among the parties. See 28 U.S.C. § 1332(a); Morrison v. Allstate Indem. Co., 228 F.3d
1255, 1261 (11th Cir. 2000).

The defendant seeking removal bears the burden of

establishing diversity jurisdiction as of the date of the removal. See Moreland v. SunTrust
Bank, No. 2:13-cv-242, 2013 WL 3716400, at *1 (M.D. Fla. July 15, 2013) (citing Pretka
v. Kolter City Plaza II, Inc., 608 F.3d 744, 751 (11th Cir. 2010)); Sammie Bonner Constr.
Co. v. W. Star Trucks Sales, Inc., 330 F.3d 1308, 1310 (11th Cir. 2003)). Removal
jurisdiction raises significant federalism concerns, and thus courts strictly construe
removal statutes. See Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994).
Any doubt as to the presence of jurisdiction should be resolved in favor of remand. See
Russell Corp. v. Am. Home Assurance Co., 264 F.3d 1040, 1050 (11th Cir. 2001).
The Court finds that the citizenship of Plaintiff Kilpatrick Cane Partnership is not
yet established.

The Notice of Removal states that Kilpatrick Cane Partnership is

identified in Plaintiffs’ Complaint (Doc. 2) as a “Florida limited liability company,” yet
Defendants have been unable to find any record of the company with the Florida
Department of State, Division of Corporations. (Doc. 1, ¶ 6). In an effort to identify the
partnership’s citizenship, Defendants point to a signed Credit Agreement and Application
wherein Defendants allege that Plaintiff James R. Kilpatrick, a Florida citizen, identified
his business as a sole proprietorship. (Id.) Yet a review of the Credit Application (Doc.
1-2) shows that “Russell Kilpatrick Cane” was the applicant, not the partnership. Thus, it
is far from clear based on the Credit Agreement that Kilpatrick Cane Partnership is a sole
proprietorship and citizenship would be determined by the citizenship of the sole
proprietor.

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The citizenship of a partnership is not determined by the state of organization and
principal place of business, as with a corporation, but rather by the citizenship of each of
its general and limited partners. See Carden v. Arkoma Assoc., 494 U.S. 185 (1990).
And a limited liability company is a citizen of every state in which one of its members is
located. Thermoset Corp. v. Building Materials Corp. of America, --- F.3d ---, 2017 WL
816224, *2 (11th Cir. Mar. 2, 2017) (citing Rolling Greens MHP, L.P. v. Comcast SCH
Holdings L.L.C., 374 F.3d 1020 (11th Cir. 2004) (noting that the pleadings are required to
provide the citizenship of each LLC member to invoke the District Court’s diversity
jurisdiction)).

Although the Court agrees that Defendants are not required to rely on

Plaintiffs’ representation in their Complaint that Kilpatrick Cane Partnership is a Florida
limited liability company, Defendants have not yet established the party’s corporate
structure for diversity purposes. See Purchasing Power, LLC v. Bluestem Brands, Inc., -- F.3d ---, 2017 WL 1046103, at *6 (11th Cir. Mar. 20, 2017) (noting that removing parties
should not rely on beliefs of opposing parties to meet the burden to establish diversity
jurisdiction, nor should the Court accept such representations without further
investigation).
Defendants will be afforded an opportunity to supplement their Notice of Removal,
as directed by 28 U.S.C. § 1653. If additional time is needed for investigation, Defendants
may move the Court for more time.
Accordingly, it is now
ORDERED:
Defendants shall supplement the Notice of Removal in accordance with the above
on or before April 27, 2017, or otherwise show cause by this date why this case should

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not be remanded for failure to establish subject-matter jurisdiction based on the presence
of diversity jurisdiction at the time of removal. Failure to comply with this Order will
result in this case being remanded without further notice.
DONE and ORDERED in Fort Myers, Florida this 13th day of April, 2017.

Copies: All Parties of Record

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