VanKirk Electric, Inc. v. Cottage Builders, Inc. et al

Filing 3

NOTICE AND ORDER: Defendants shall have seven (7) days from the date of this Notice and Order to file a comprehensive amended Notice of Removal (i.e., it may not refer back to or rely on any previous pleading) without further leave of Court properly setting forth the citizenship particulars required to establish that the Court has diversity jurisdiction over this case under 28 U.S.C. § 1332(a). Signed by Magistrate Judge Erin Wilder-Doomes on 11/14/17. (DCB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

VANKIRK ELECTRIC, INC.

CIVIL ACTION

VERSUS

NO. 17-1642-JWD-EWD

COTTAGE BUILDERS, INC., ET AL.

NOTICE AND ORDER
This is a civil action involving claims for damages incurred during the construction of a
student housing complex near Louisiana State University. On or about October 10, 2017, VanKirk
Electric, Inc. filed a Petition against Cottage Builders, Inc., The Guarantee Company of North
America USA, C3-Baton Rouge, L.L.C. and Capstone Collegiate Communities, L.L.C.
(collectively, “Defendants”) in the Nineteenth Judicial District Court for the Parish of East Baton
Rouge, State of Louisiana.1 The matter was removed to this Court by Defendants on November
9, 2017, on the basis of diversity jurisdiction under 28 U.S.C. § 1332(a).2 The Notice of Removal
contains the following allegations regarding the citizenship of the parties:
9.
The Petition alleges that VanKirk is a corporation formed under the
laws of Georgia. For the purpose of determining the citizenship of
a corporation, a corporation is deemed to be a citizen of the state of
incorporation and the state where its principal place of business is
located. 28 U.S.C. § 1332 (c). A corporation’s principal place of
business refers to the place where the corporation’s officers direct,
control, and coordinate the corporation’s activities. Hertz Corp. v.
Friend, 599 U.S. 77 (2010). A corporation’s principal place of
business is its “nerve center.” Upon information and belief,
VanKirk’s principal place of business is also in the State of Georgia.
Because VanKirk is a corporation formed under the law of the State
of Georgia and has its principal place of business in Georgia,
1
2

R. Doc. 1-1.
R. Doc. 1 at Introductory Paragraph.

VanKirk is considered to be a citizen of Georgia for the purpose of
diversity jurisdiction.
DEFENDANTS:
10.
Cottage Builders is a corporation formed under the laws of the State
of Alabama. Cottage Builder’s officers direct, control, and
coordinate the corporation’s activities from its corporate office in
Alabama. Accordingly, its principal place of business is located in
Alabama. Cottage Builders is, therefore, considered to be a citizen
of Alabama for the purposes of diversity jurisdiction.
11.
Guarantee is a corporation formed under the laws of the State of
Michigan. Guarantee’s officers direct, control, and coordinate the
corporation’s activities from its corporate office in Michigan.
Accordingly, its principal place of business is located in Michigan.
Guarantee is, therefore, considered to be a citizen of Michigan for
the purposes of diversity jurisdiction.
12.
Capstone is a limited liability company formed under the laws of the
State of Alabama. For the purpose of determining the citizenship of
a limited liability company, “limited partnerships and other
unincorporated associations or entities, the citizenship of a limited
liability company is determined by the citizenship of all of its
members.” Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1080
(5th Cir. 2008). Capstone has three members, including Robert
Howland, John Vawter, and Benjamin Walker—all of whom are
citizens of and domiciled in Alabama. Accordingly, Capstone is
considered to be a citizen of Alabama for the purposes of diversity
jurisdiction.
13.
C3-Baton Rouge is a limited liability company formed under the
laws of the State of Delaware. C3-Baton Rouge is wholly owned by
C3-BR Holdings, LLC, which is a limited liability company formed
under the laws of the State of Delaware. C3-BR Holdings, LLC is,
in turn, owned by Capstone. As noted above, Capstone has three
members, including Robert Howland, John Vawter, and Benjamin
Walker—all of whom are citizens of and domiciled in Alabama.
Accordingly, C3-Baton Rouge is considered to be a citizen of
Alabama for the purposes of diversity jurisdiction.3
Proper information regarding the citizenship of all parties is necessary to establish the
Court’s diversity jurisdiction, as well as to make the determination required under 28 U.S.C. §

3

R. Doc. 1 at ¶¶ 9-13 (footnotes omitted).
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1441 regarding whether the case was properly removed to this Court. Citizenship has not been
adequately alleged in the Notice of Removal. While the citizenship of VanKirk Electric, Inc.,
Cottage Builders, Inc., The Guarantee Company of North America USA and Capstone Collegiate
Communities, L.L.C. has been properly alleged,4 the citizenship of C3-Baton Rouge, L.L.C. has
not been adequately alleged. The Fifth Circuit has held that for purposes of diversity, the
citizenship of a limited liability company is determined by considering the citizenship of all its
members. Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1080 (5th Cir. 2008). Thus, to
properly allege the citizenship of a limited liability company, a party must identify each of the
members of the limited liability company and the citizenship of each member in accordance with
the requirements of 28 U.S.C. § 1332(a) and (c). The same requirement applies to any member of
a limited liability company which is also a limited liability company. See, Turner Bros. Crane
and Rigging, LLC v. Kingboard Chemical Holding Ltd., Civ. A. No. 06-88-A, 2007 WL 2848154,
at *4 (M.D. La. Sept. 24, 2007) (“when partners or members are themselves entities or
associations, the citizenship must be traced through however many layers of members or partners
there may be, and failure to do [so] can result in dismissal for want of jurisdiction.”) (citations
omitted). The Notice of Removal does not identify each of the members of C3-Baton Rouge,
L.L.C., nor does it allege the citizenship of each member.

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With respect to VanKirk Electric, Inc., Cottage Builders, Inc. and The Guarantee Company of North America USA,
the Fifth Circuit has held that, “For diversity jurisdiction purposes, a corporation is a citizen of the state in which it
was incorporated and the state in which it has its principal place of business.” Getty Oil, Div. of Texaco v. Ins. Co. of
North America, 841 F.2d 1254, 1259 (5th Cir. 1988) (citing 28 U.S.C. § 1332(c)). Thus, to properly allege the
citizenship of a corporation, a party must identify the place of incorporation and the corporation’s principal place of
business in accordance with the requirements of 28 U.S.C. § 1332(c). With respect to Capstone Collegiate
Communities, L.L.C., the Fifth Circuit has held that for purposes of diversity, the citizenship of a limited liability
company is determined by considering the citizenship of all its members. Harvey v. Grey Wolf Drilling Co., 542 F.3d
1077, 1080 (5th Cir. 2008).
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Accordingly,
IT IS HEREBY ORDERED that Defendants shall have seven (7) days from the date of
this Notice and Order to file a comprehensive amended Notice of Removal (i.e., it may not refer
back to or rely on any previous pleading) without further leave of Court properly setting forth the
citizenship particulars required to establish that the Court has diversity jurisdiction over this case
under 28 U.S.C. § 1332(a).
Signed in Baton Rouge, Louisiana, on November 14, 2017

S
ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE

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