Kulich v. Peace River Charters LLC et al

Filing 11

ORDERED: Defendants must SUPPLEMENT the Notice of Removal on or before July 14, 2020, to show cause why this case should not be remanded for lack of subject-matter jurisdiction. Failure to comply with this Order will result in the case being remanded without further notice. Signed by Judge Sheri Polster Chappell on 7/7/2020. (AEH)

Case 2:20-cv-00455-SPC-MRM Document 11 Filed 07/08/20 Page 1 of 3 PageID 100

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JAMES KULICH,
Plaintiff,
v.

Case No.: 2:20-cv-455-FtM-38MRM

PEACE RIVER CHARTERS LLC and
BRUCE LEE TRAUGNOTT,
Defendants.
/
ORDER1
Before the Court is Defendant Peace River Charters LLC and Bruce Lee Traugott’s
Notice of Removal. (Doc. 1). Plaintiff James Kulich sues Defendants for negligence after
sustaining injuries while abord an airboat owned and operated by Defendants. (Doc. 3).
Defendants cite diversity as the jurisdictional basis. The Court is not so sure.
A defendant may remove a civil action from state to federal court if the federal court
has original jurisdiction. 28 U.S.C. § 1441(a). “The existence of federal jurisdiction is
tested at the time of removal.” Adventure Outdoors, Inc. v. Bloomberg, 552 F.3d 1290,
1294-95 (11th Cir. 2008); 28 U.S.C. § 1447(c). “A removing defendant bears the burden
of proving proper federal jurisdiction.” Leonard v. Enter. Rent a Car, 279 F.3d 967, 972
(11th Cir. 2002). And because federal courts have limited jurisdiction, they are “obligated
to inquire into subject matter jurisdiction sua sponte whenever it may be lacking.” Univ.
of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999).

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Case 2:20-cv-00455-SPC-MRM Document 11 Filed 07/08/20 Page 2 of 3 PageID 101

After removal, jurisdictional defects leave the Court with no option but to remand.
On the other hand, procedural defects (like untimeliness or violating the forum-defendant
rule) are waivable. Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 751-52 (11th Cir.
2010); Pacheco de Perez v. AT&T Co., 139 F.3d 1368, 1372 n.4 (11th Cir. 1998). So
courts cannot sua sponte remand for a procedural defect before a party moves to remand.
Whole Health Chiropractic & Wellness, Inc. v. Humana Med. Plan, Inc., 254 F.3d 1317,
1320-21 (11th Cir. 2001).
Federal courts have diversity jurisdiction over civil actions where there is complete
diversity of citizenship among the opposing parties and the amount in controversy
exceeds $75,000, exclusive of interest and costs. 28 U.S.C. § 1332(a). Here, the
diversity of citizenship requirement is problematic because Peace River does not
sufficiently plead its citizenship.
A limited liability company (“LLC”)—like Peace River—is a citizen of every state in
which one of its members is domiciled. Rolling Greens MHP, L.P. v. Comcast SCH
Holdings L.L.C., 374 F.3d 1020 (11th Cir. 2004). Each member of the LLC must be
diverse from the opposing party. See Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005).
Peace River alleges Defendants are citizens of Florida while Plaintiff is a citizen of
Missouri. Specifically, Peace River says it is a Florida LLC with its principal place of
business in Arcadia, Florida. But this pleading fails to tell the Court the domicile of Peace
River’s individual member(s). Cf. McCormick v. Aderholt, 293 F.3d 1254, 1257 (11th Cir.
2002) (stating an individual is a citizen where he is domiciled, not necessarily where he
is a resident). Without such allegations, Peace River has not adequately pleaded diversity
of citizenship.

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Case 2:20-cv-00455-SPC-MRM Document 11 Filed 07/08/20 Page 3 of 3 PageID 102

Accordingly, it is now
ORDERED:
Defendants must SUPPLEMENT the Notice of Removal on or before July 14,
2020, to show cause why this case should not be remanded for lack of subject-matter
jurisdiction. Failure to comply with this Order will result in the case being remanded
without further notice.
DONE and ORDERED in Fort Myers, Florida this 7th day of July, 2020.

Copies: All Parties of Record

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