Nichols v. WBX Transport, LLC et al
Filing
11
OPINION AND ORDER denying 9 Motion for Reconsideration. Signed by Judge William S. Duffey, Jr on 10/8/2015. (anc)
On January 22, 2015, Defendants filed a petition to remove this case to
federal court pursuant to 28 U.S.C. § 1446(b)(3), based on diversity of citizenship
jurisdiction under 28 U.S.C. § 1332. (Defs.’ Pet. for Removal [1] at 3-4).
Defendants claim in their removal petition that only in December 2014 did
Plaintiff present information showing that the amount in controversy will exceed
$75,000. Within thirty days of this discovery, Defendants filed their removal
petition. (Id.)
Besides alleging an amount in controversy greater than $75,000, Defendants
also allege Defendant WBX Transport, LLC (the “LLC”) is a “Texas corporation
with its principal place of business in Texas.” (Id. at 2). Defendants allege
Defendant Castlepoint National Insurance Company is a “Florida corporation with
its principal place of business in Florida,” and Defendant Robert Couchman “is a
resident of Florida.” (Id.).
On January 27, 2015, Plaintiff filed a timely motion to remand [2] the case
to state court pursuant to 28 U.S.C. § 1447(c), on the ground that Defendants have
not met their burden to show diversity of citizenship. Specifically, Plaintiff argued
that Defendants failed to allege the citizenship of each member of the LLC. (Mot.
to Remand at 1).
2
On August 19, 2015, the Court granted Plaintiff Linda M. Nichols’s
(“Plaintiff”) Motion to Remand, finding that Defendants failed to carry their
burden to show that the parties are completely diverse, because they alleged the
residence of Mr. Couchman, rather than his citizenship. On September 15, 2015,
Defendants moved the Court to reconsider. Defendants argue that Plaintiff’s state
court Complaint, included in Defendants’ removal petition, alleges Mr. Couchman
is a citizen of the state of Florida. (Mot. for Recons. [9-1] at 2). To their Motion
for Reconsideration, Defendants attached their state court Answer, in which
Defendants admit the allegation of Mr. Couchman’s citizenship. (Mot. for Recons.
at Ex. A [9-2]).
II.
DISCUSSION
A.
Legal Standard
Pursuant to Local Rule 7.2(E), “[m]otions for reconsideration shall not be
filed as a matter of routine practice.” Rather, such motions are only appropriate
when “absolutely necessary” to present: (1) newly discovered evidence; (2) an
intervening development or change in controlling law; or (3) a need to correct a
clear error of law or fact. Bryan v. Murphy, 246 F. Supp. 2d 1256, 1258-59 (N.D.
Ga. 2003) (internal quotations and citations omitted). Motions for reconsideration
are left to the sound discretion of the district court and are to be decided as justice
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requires. Belmont Holdings Corp. v. SunTrust Banks, Inc., 896 F. Supp. 2d 1210,
1222-23 (N.D. Ga. 2012) (citing Region 8 Forest Serv. Timber Purchasers Council
v. Alcock, 993 F.2d 800, 806 (11th Cir. 1993)).
B.
Analysis
In removed cases, the removing defendant has the burden to establish the
existence of diversity jurisdiction. See Williams v. Best Buy Co., 269 F.3d 1316,
1319 (11th Cir. 2001). To establish diversity, Defendants are required to show
citizenship, not residence. Travaglio v. American Exp. Co., 735 F.3d 1266, 1269
(11th Cir. 2013) (“Residence alone is not enough.”). For United States citizens,
“[c]itizenship is equivalent to ‘domicile’ for purposes of diversity jurisdiction,”
and “domicile requires both residence in a state and ‘an intention to remain there
indefinitely.’” Id. (quoting McCormick v. Aderholt, 293 F.3d 1254, 1257-58 (11th
Cir. 2002)).
Defendants argue the Court should reconsider its Order granting Plaintiff’s
Motion to Remand on the ground that Defendants did, in fact, show diversity of
citizenship. Defendants’ argument fails. First, Plaintiff’s state court Complaint
only provides the Court with Plaintiff’s allegation of Mr. Couchman’s citizenship,
and is silent as to Defendants’ position on citizenship. The burden to show
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diversity is on Defendants, Williams, 269 F.3d at 1319, and the allegations
contained in Plaintiff’s state court Complaint do not satisfy the burden.1
Second, Defendants’ state court Answer—attached to their Motion for
Reconsideration and not previously submitted to the Court—is not
newly-discovered evidence, and therefore is not properly before the Court. See
Arthur v. King, 500 F.3d 1335, 1343-44 (11th Cir. 2007) (holding evidence that
could have been discovered and presented on the previously-filed motion is not
newly-discovered); see also Mays v. U.S. Postal Serv., 122 F.3d 43, 46 (11th Cir.
1997) (“We join those circuits in holding that where a party attempts to introduce
previously unsubmitted evidence on a motion to reconsider, the court should not
grant the motion absent some showing that the evidence was not available during
the pendency of the motion.”).2
1
The Court notes that Plaintiff’s state court allegation of Mr. Couchman’s
citizenship is buried in the seventy-fourth page of Exhibit A to Defendants’ notice
of removal. It is not the Court’s duty to scour the record in an attempt to find
evidence to satisfy Defendants’ burden to show diversity. Cf. Atlanta Gas Light
Co. v. UGI Utils., 463 F.3d 1201, 1208 n.11 (11th Cir. 2006) (“Neither the district
court nor this Court has an obligation to parse the summary judgment record to
search out facts or evidence not brought to the court’s attention.”); Interface, Inc.
v. Tandus Flooring, Inc., No. 4:13-cv-46-WSD, 2014 WL 273446, at *3 (N.D. Ga.
Jan. 22, 2014) (“The Court is not required to scour through the record for the
evidence upon which the Plaintiffs relied in their Motion for Preliminary
Injunction.”).
2
Even if the Court could consider Defendants’ state court Answer, it is
unclear whether this evidence would be sufficient to establish diversity of
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As the Court noted in its Order granting Plaintiff’s Motion to Remand,
Defendants have had ample opportunity to properly establish that removal is
appropriate in this case. Their first opportunity was when they filed their removal
petition and supporting documents. Defendants had a second opportunity after
Plaintiff filed her motion to remand, putting Defendants on notice that the diversity
allegations in their removal petition were deficient.3 The Court declined to grant
Defendants another bite at the apple, and declines to reconsider that decision here.
Defendants have not satisfied their burden to show the parties are diverse. They
citizenship. An allegation of citizenship before a state court may be different than
citizenship for purposes of establishing diversity jurisdiction in federal court. See
Travaglio, 735 F.3d at 1269 (defining citizenship for purposes of diversity
jurisdiction to require residence and an intention to remain indefinitely). In part
for this reason, Defendants’ reliance on Molinos Valle del Cibao C. por A. v. Lima
is misplaced. 633 F.3d 1330, 1342-43 (11th Cir. 2011). In Molinos, the Eleventh
Circuit used an admission of citizenship in a defendant’s answer to a complaint to
find that the court had diversity jurisdiction. Id. The answer in question, however,
was filed in federal court rather than state court, and was also properly before the
court rather than newly-submitted on a motion for reconsideration. Id.
3
Even if the Court could find that Defendants properly alleged Mr.
Couchman’s citizenship, remand would still be required because Defendants also
have failed to properly allege the citizenship of WBX Transport, LLC. “To
sufficiently allege the citizenships of these unincorporated business entities, a party
must list the citizenships of all the members of the limited liability company . . . .”
Rolling Greens MHP, L.P. v. Comcast SCH Holdings L.L.C., 374 F.3d 1020, 1022
(11th Cir. 2004). The Court may only look to the notice of removal and
accompanying documents to determine whether Defendants have met their burden
to establish diversity. Lowery v. Alabama Power Co., 483 F.3d 1184, 1214 (11th
Cir. 2007). Defendants’ removal documents do not identify the members of WBX
Transport, LLC or the citizenship of its members, and remand is required for this
reason as well.
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have also failed to present any newly-discovered evidence, intervening
development or change in controlling law, or a need to correct a clear error of law
or fact that would warrant the Court’s reconsideration of its Order granting
Plaintiff’s Motion to Remand.
III.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Defendants’ Motion for Reconsideration
[9] is DENIED.
SO ORDERED this 8th day of October, 2015.
_______________________________
WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE
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