Obas v. Ritz-Carlton Hotel Company, LLC et al

Filing 16

ORDER.Defendant Ritz-Carlton must supplement its Notice of Removal in accordance with this Order by April 21, 2017. Failure to do so will result in this case being remanded without further notice. The Court will take no further action on its Order to Show Cause 7 . Signed by Judge Sheri Polster Chappell on 4/6/2017. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
RONALD OBAS,
Plaintiff,
v.

Case No: 2:17-cv-150-FtM-99CM

RITZ-CARLTON HOTEL COMPANY,
LLC and WILLIAM JESKE,
Defendants.
/
ORDER1
This matter comes before the Court on Defendant Ritz-Carlton Hotel Company,
LLC’s (Ritz-Carlton) Response to this Court’s Order to Show Cause (Doc. 7), directing
Ritz-Carlton to show cause why this case should not be remanded for failure to establish
diversity jurisdiction at the time of removal. Specifically, the Court noted that Ritz-Carlton
had failed to identify the citizenship of the members of the limited liability company. The
Court is satisfied with Ritz-Carlton’s response as to the LLC’s citizenship.
The Court further notes an additional issue with the Notice of Removal, wherein it
states that Plaintiff “alleges he is a resident of Florida.” (Doc. 1, ¶ 5). There are two
problems with this. First, Ritz-Carlton relies on Plaintiff’s allegations to satisfy diversity,
but as the Eleventh Circuit has recently noted, removing parties should not rely on beliefs

1

Disclaimer: Documents filed in CM/ECF may contain hyperlinks to other documents or websites.
These hyperlinks are provided only for users’ convenience. Users are cautioned that hyperlinked
documents in CM/ECF are subject to PACER fees. By allowing hyperlinks to other websites, this
Court does not endorse, recommend, approve, or guarantee any third parties or the services or
products they provide on their websites. Likewise, the Court has no agreements with any of these
third parties or their websites. The Court accepts no responsibility for the availability or
functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to
some other site does not affect the opinion of the Court.

of opposing parties to meet the burden to establish diversity jurisdiction, nor should the
Court accept such representations without further investigation. See Purchasing Power,
LLC v. Bluestem Brands, Inc., --- F.3d ---, 2017 WL 1046103, at *6 (11th Cir. Mar. 20,
2017). Second, domicile is required, not residency. An individual is a citizen where he is
domiciled, not necessarily where he is a resident. See McCormick v. Aderholt, 293 F.3d
1254, 1257 (11th Cir. 2002) ("Citizenship is equivalent to 'domicile' for purposes of
diversity jurisdiction."). Domicile is the place of an individual's true, fixed, and permanent
home and to which he intends to return whenever he is absent therefrom. See Mississippi
Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989) (citations omitted). A
domicile is not synonymous with a residence, and it is possible for someone to reside in
one place but be domiciled in another.

See id.

Ritz-Carlton will be afforded an

opportunity to supplement its Notice of Removal, as directed by 28 U.S.C. § 1653.
Finally, Ritz-Carlton states in its Notice of Removal that Plaintiff, who is a Florida
citizen, may not use the joinder of Defendant William Jeske, who is alleged in Plaintiff’s
Complaint to be a resident of Collier County, Florida (Doc. 2), to destroy diversity.2 (Doc.
1, ¶ 6). The Court assumes arguendo that this is correct at this stage of the litigation, but
notes that subject-matter jurisdiction remains a “live” issue throughout the duration of this
case.3

28 U.S.C. §1441(b) states, “Such action[s] shall be removable only if none of the parties in
interest properly joined and served as defendants is a citizen of the state in which such action is
brought” (emphasis added).
2

3

The Court notes that there is a split in authority as to whether the presence of an unserved,
nondiverse defendant destroys a federal court’s removal jurisdiction, and the Eleventh Circuit has
never squarely addressed the issue. See Goodwin v. Reynolds, 757 F.3d 1216, 1221 (11th Cir.
2014). See also North v. Precision Airmotive Corp., 600 F. Supp. 2d 1263, 1268 (M.D. Fla. 2009)
(collecting cases).

2

Accordingly, it is now
ORDERED:
(1)

Defendant Ritz-Carlton must supplement its Notice of Removal in

accordance with this Order by April 21, 2017. Failure to do so will result in this case
being remanded without further notice.
(2)

The Court will take no further action on its Order to Show Cause (Doc. 7).

DONE and ORDERED in Fort Myers, Florida this 6th day of April, 2017.

Copies: All Parties of Record

3