VALSOURCE, LLC v. CONAWAY

Filing 12

CLOSED - REMANDED to Marion Superior Court under cause no. 49C01-0602-PL-0007071. Signed by Judge David Frank Hamilton on 3/21/2006. (LSC, )

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VALSOURCE, LLC v. CONAWAY Doc. 12 Case 1:06-cv-00447-DFH-VSS Document 12 Filed 03/21/2006 Page 1 of 2 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION VALSOURCE, LLC, Plaintiff, v. BRETT CONAWAY, Defendant. ) ) ) ) ) CASE NO. 1:06-cv-0447-DFH-VSS ) ) ) ) ORDER OF REMAND This action was filed in the state courts, and defendant Conway removed the action on March 16, 2006 on the basis of diversity jurisdiction under 28 U.S.C. 1332. There are two problems with the removal, and one cannot be cured. The potentially curable problem is that plaintiff Valsource, LLC appears to be a limited liability company, and not a corporation (as Valsource alleged in the complaint). The Seventh Circuit has repeatedly held that a limited liability company is treated like a partnership for purposes of diversity jurisdiction, meaning that it has the citizenship of all of its members. Cosgrove v. Bartolotta, 150 F.3d 729, 731 (7th Cir. 1998), and cases citing Cosgrove. That problem, which is too common, often can be solved by giving the party invoking diversity jurisdiction an opportunity to amend the complaint or removal papers, as the case may be. Dockets.Justia.com Case 1:06-cv-00447-DFH-VSS Document 12 Filed 03/21/2006 Page 2 of 2 The second problem is that defendant Conway, who removed this action, is a citizen of Indiana. A case relying on diversity jurisdiction "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." 28 U.S.C. 1441(b). As a citizen of Indiana, Conway is not entitled to remove the case, which must be remanded to the Marion Superior Court. So ordered. Date: March 21, 2006 DAVID F. HAMILTON, JUDGE United States District Court Southern District of Indiana Copies to: Thomas E. Deer LOCKE REYNOLDS LLP tdeer@locke.com James M. Hinshaw BINGHAM MCHALE LLP jhinshaw@binghammchale.com Jonna L. McGinley BINGHAM MCHALE jmcginley@binghammchale.com Anthony W. Overholt LOCKE REYNOLDS LLP aoverholt@locke.com Brian W. Welch BINGHAM MCHALE bwelch@binghammchale.com -2-

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