Tender Loving Health Care Services of Nassau of Suffolk, LLC et al v. Bayit Care Corporation

Filing 5

ORDER TO AMEND 1 Notice of Removal, filed by Bayit Care Corporation. IT IS ORDERED that defendant Bayit Care Corporation shall have 14 days to file an Amended Notice of Removal which properly alleges the citizenship of the parties.. Signed by Magistrate Judge Stephen C. Riedlinger on 7/26/11. (LSM) Modified on 7/27/2011 to edit text (LSM).

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

TENDER LOVING HEALTH CARE
SERVICES OF NASSAU SUFFOLK,
LLC, ET AL

CIVIL ACTION
NUMBER 11-496-FJP-SCR

VERSUS
BAYIT CARE CORPORATION
ORDER TO AMEND NOTICE OF REMOVAL
Defendant Bayit Care Corporation removed this case asserting
subject matter jurisdiction under 28 U.S.C. § 1332, diversity of
citizenship.

In the Notice of Removal the defendant alleged that

it is “a corporation organized under the law of New York and
domiciled in Nassau County, New York,” and that plaintiff “TENDER
LOVING HEALTH CARE SERVICES OF NASSAU SUFFOLK, LLC is “limited
liability company organized under the laws of the state of New York
and domiciled in the Parish of East Baton Rouge, with its address
at 5959 S. Sherwood Forest Boulevard, Baton Rouge, Louisiana.”
Defendant further alleged that Tender Loving Health Care is “a
wholly owned subsidiary of plaintiff AMEDISYS, INC.” and that
Amedisys is “a corporation organized under the laws of Delaware and
domiciled at 5959 S. Sherwood Forest Boulevard, Baton Rouge,
Louisiana.”
When jurisdiction depends on citizenship, the citizenship of
each

party

must

be

distinctly

and

affirmatively

alleged

in

accordance with § 1332(a) and (c).1
Under § 1332(c)(1) a corporation is deemed to be a citizen of
any state in which it is incorporated, and of the state in which it
has its principal place of business.

For purposes of diversity,

the citizenship of a limited liability company is determined by
considering the citizenship of all its members.2

Thus, to properly

allege the citizenship of a limited liability company, the party
asserting jurisdiction must identify each of the entity’s members
and

the

citizenship

of

each

member

in

accordance

with

the

requirements of § 1332(a) and (c).3
Defendant’s jurisdictional allegations are not sufficient to
establish diversity jurisdiction.

First, the court cannot assume

that the states where plaintiff Amedisys and the defendant are
“domiciled” is the same state where they have their principal
places

of

business.

Diversity

jurisdiction

is

based

on

1

Stafford v. Mobil Oil Corp., 945 F.2d 803, 804 (5th Cir.
1991), citing, McGovern v. American Airlines, Inc., 511 F.2d 653,
654 (5th Cir. 1975)(quoting 2A Moore’s Federal Practice ¶ 8.10, at
1662).
2

Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1080 (5th
Cir. 2008); see Carden v. Arkoma Associates, 494 U.S. 185, 110
S.Ct. 1015, 1021 (1990).
3

The same requirement applies to any member of a limited
liability company which is also a limited liability company or a
partnership.
Turner Bros. Crane and Rigging, LLC v. Kingboard
Chemical Holding Ltd., 2007 WL 2848154 (M.D.La. Sept. 24,
2007)(when partners or members are themselves entities or
associations, citizenship must be traced through however many
layers of members or partners there are).
2

citizenship, not where the party is domiciled.

Furthermore, the

term “domicile” sometimes refers to the state of incorporation.
The better course is to allege the state of which the party is a
“citizen” – the term used in § 1332.
Second, because plaintiff Tender Loving Health Care is a
limited liability company, the state where it is organized and
where is “domiciled” does not determine its citizenship.

If that

were true, there clearly would be no diversity jurisdiction in this
case: both plaintiff Tender Loving Health Care (“organized” under
New York law) and defendant Bayit Care (“organized” under New York
law) would be citizens of the state of New York.
Therefore;
IT IS ORDERED that defendant Bayit Care Corporation shall have
14 days to file an Amended Notice of Removal which properly alleges
the citizenship of the parties.
Failure to comply with this order may result in the case being
remanded for lack of subject matter jurisdiction without further
notice.
Baton Rouge, Louisiana, July 26, 2011.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

3