Miller v. FMC Industries, LLC et al

Filing 6

OPINION AND ORDER directing Defendant must file an Amended Notice of Removal on or before November 27, 2017, that provides the information required by this Order. Signed by Judge William S. Duffey, Jr on 11/21/17. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
JENNIFER HARPER MILLER,
Plaintiff,
v.

1:17-cv-4481-WSD

FMC INDUSTRIES, LLC, FMC
INDUSTRIES, DIANA LEAL
GONZALEZ, individually and/or
authorized representative of her
Estate in the event she is
predeceased, LANCER
INSURANCE COMPANY, JOHN
DOE INDIVIDUAL(S) AND JOHN
DOE ENTITY(IES),
Defendants.

OPINION AND ORDER
On October 6, 2017, Plaintiff Jennifer Harper Miller (“Plaintiff”) filed a
Complaint against Defendants FMC Industries, LLC, Diana Leal Gonzalez, and
Lancer Insurance Company (collectively “Defendants”), in the State Court of
DeKalb County, Georgia, asserting a claim for negligence and requesting an award
of damages, and attorney’s fees and expenses.
On November 7, 2017, Defendant removed the DeKalb County action to the
Court based on diversity of citizenship. (Notice of Removal [1]).

Defendant’s Notice of Removal asserts that the Court has diversity
jurisdiction pursuant to 28 U.S.C. § 1332. Federal courts “have an independent
obligation to determine whether subject-matter jurisdiction exists, even in the
absence of a challenge from any party.” Arbaugh v. Y&H Corp., 546 U.S. 500,
501 (2006). The Eleventh Circuit consistently has held that “a court should inquire
into whether it has subject matter jurisdiction at the earliest possible stage in the
proceedings. Indeed, it is well settled that a federal court is 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). In this case,
Plaintiff’s Complaint raises only questions of state law and the Court only could
have diversity jurisdiction over this matter.
Diversity jurisdiction exists where the amount in controversy exceeds
$75,000 and the suit is between citizens of different states. 28 U.S.C § 1332(a).
“Diversity jurisdiction, as a general rule, requires complete diversity—every
plaintiff must be diverse from every defendant.” Palmer Hosp. Auth. of Randolph
Cnty., 22 F.3d 1559, 1564 (11th Cir. 1994). “Citizenship for diversity purposes is
determined at the time the suit is filed.” MacGinnitie v. Hobbs Grp., LLC,
420 F.3d 1234, 1239 (11th Cir. 2005). “The burden to show the jurisdictional fact
of diversity of citizenship [is] on the . . . plaintiff.” King v. Cessna Aircraft Co.,

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505 F.3d 1160, 1171 (11th Cir. 2007) (alteration and omission in original) (quoting
Slaughter v. Toye Bros. Yellow Cab Co., 359 F.2d 954, 956 (5th Cir. 1966)). A
limited liability company, unlike a corporation, is a citizen of any state of which
one of its members is a citizen, not of the state where the company was formed or
has it principal office. See Rolling Greens MHP, L.P. v. Comcast SCH Holdings
L.L.C., 374 F.3d 1020, 1022 (11th Cir. 2004).
The Notice of Removal does not adequately allege Plaintiff’s citizenship. It
states only that “Plaintiff is a resident of the State of Georgia.” ([1] ¶4). To show
citizenship, however, “[r]esidence alone is not enough.” Travaglio v. Am. Exp.
Co., 735 F.3d 1266, 1269 (11th Cir. 2013). 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)).
The Notice of Removal also does not adequately allege the citizenship of
Defendant FMC Industries, LLC (“FMC”). It states only that FMC is “a
corporation organized and incorporated under the laws of the State of Texas, with
its principle [sic] place of business in Texas, located at 9604 N. Ware Road,
McAllen, TX 78504,” “[a]t no time has Defendant FMC been domiciled in the

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State of Georgia,” and, “[n]or has it ever maintained its principle [sic] place of
business in the State of Georgia.” ([1] ¶ 7). This allegation is insufficient.
Defendant is required to allege the identity of all of the LLC’s members and their
respective citizenship in order for the Court to determine if it has subject matter
jurisdiction. See Rolling Greens, 374 F.3d at 1022.
Defendants are required to file an amended notice of removal stating: (1)
the citizenship of Plaintiff Jennifer Harper Miller; and (2) the identities of FMC
members and their respective citizenships.1 The Court notes that it is required to
dismiss or remand this action unless Defendants provide the required supplement
alleging sufficient facts to show the Court’s jurisdiction. See Travaglio v. Am.
Express Co., 735 F.3d 1266, 1268-69 (11th Cir. 2013) (holding that the district
court must dismiss an action for lack of subject matter jurisdiction unless the
pleadings or record evidence establishes jurisdiction).
Accordingly, for the foregoing reasons,

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“[W]hen an entity is composed of multiple layers of constituent entities, the
citizenship determination requires an exploration of the citizenship of the
constituent entities as far down as necessary to unravel fully the citizenship of the
entity before the court.” RES-GA Creekside Manor, LLC v. Star Home Builders,
Inc., No. 10-cv-207, 2011 WL 6019904, at *3 (N.D. Ga. Dec. 2, 2011) (quoting
Multibank 2009-1 RES-ADC Venture, LLC v. CRM Ventures, LLC, No.
10-cv-02001, 2010 WL 3632359, at *1 (D. Colo. Sept. 10, 2010)).
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IT IS HEREBY ORDERED that Defendant must file an Amended Notice
of Removal on or before November 27, 2017, that provides the information
required by this Order.

SO ORDERED this 21st day of November, 2017.

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