Gills v. C Verizon Corp
SUA SPONTE JURISDICTIONAL BRIEFING ORDER. Signed by Magistrate Judge Joseph H L Perez-Montes on 11/7/2017. (crt,ThomasSld, T)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
HEIDI ANN GILLS,
CIVIL ACTION NO. 1:17-CV-01415
MAGISTRATE JUDGE PEREZ-MONTES
SUA SPONTE JURISDICTIONAL BRIEFING ORDER
Before the Court is a Complaint removed from a Louisiana state court by
Defendant Cellco Partnership, doing business as Verizon Wireless (“Cellco”). 1 (Doc.
1). Cellco premises federal jurisdiction on diversity of citizenship (Doc. 1). “[S]ubjectmatter jurisdiction, because it involves a court’s power to hear a case, can never be
forfeited or waived.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006) (citing Ruhrgas
AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999)). The Court has “an independent
obligation to determine whether subject-matter jurisdiction exists, even in the
absence of a challenge from any party.” Id.
The diversity statute – 28 U.S.C. § 1332 – is satisfied upon a showing of: (1)
diversity of citizenship between the parties; and (2) an amount in controversy in
excess of $75,000, exclusive of interest and costs. “Complete diversity requires that
all persons on one side of the controversy be citizens of different states than all
persons on the other side.” Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1079
Cellco alleges it was incorrectly named as Verizon Corporation. (Doc. 1).
(5th Cir. 2008) (citing Harrison v. Prather, 404 F.2d 267, 272 (5th Cir. 1968)) (internal
citation and quotation omitted).
“[W]hen jurisdiction depends on citizenship,
citizenship must be distinctly and affirmatively alleged.” Getty Oil Corp., a Div. of
Texaco, Inc. v. Ins. Co. of N. Am., 841 F.2d 1254, 1259 (5th Cir. 1988) (internal
quotation omitted) (See also Mullins v. Testamerica, Inc., 2008 WL 4888576 (5th Cir.
In cases removed from state court, diversity of citizenship must exist both at
the time of filing in state court and at the time of removal to federal court. Coury v.
Prot, 85 F. 3d 244, 249 (5th Cir. 1996). The party invoking subject matter jurisdiction
in federal court has the burden of establishing the Court’s jurisdiction. St. Paul
Reinsurance Co., Ltd. v. Greenberg, 134 F. 3d 1250, 1253-54 (5th Cir. 1998). In this
case, the removing Defendant must bear that burden.
The citizenship of an individual is his or her domicile, meaning the place where
an individual resides and intends to remain. See Acridge v. Evangelical Lutheran
Good Samaritan Soc., 334 F.3d 444, 448 (5th Cir. 2003). A corporation shall be
deemed to be a citizen of every State and foreign state by which it has been
incorporated and of the State or foreign state where it has its principal place of
business. See Tewari De-Ox Systems, Inc. v. Mountain States/Rosen, L.L.C., 757
F.3d 481, 483 (5th Cir. 2014). “[T]he citizenship of a partnership is determined by
reference to the citizenship of each of its partners.” See Int'l Paper Co. v. Denkmann
Associates, 116 F.3d 134, 135, 137 (5th Cir. 1997). The citizenship of a limited
liability company (“L.L.C.”), a limited partnership, or other unincorporated
association or entity is determined by the citizenship of all its members. See Harvey,
542 F.3d at 1079-80.
The Plaintiff’s Petition for Damages (“Petition”) does not seek a specific
amount of damages (Doc. 1-1). Therefore, the removing Defendant is required to
either (1) demonstrate that it is facially apparent that the amount in controversy
exceeds $75,000; or (2) set forth specific facts in controversy that support a finding of
the jurisdictional amount. St. Paul Reinsurance, 134 F. 3d at 1253. Cellco alleges
the jurisdictional amount is established, as evidenced by plaintiff’s refusal to execute
the Stipulation and Waiver which was sent to her on October 24, 2017. (Doc. 1, Exh.
Plaintiff Heidi Ann Gills (“Gills”) alleges she is a citizen of Rapides Parish,
Louisiana. (Doc. 1-4). Gills is a citizen of Louisiana.
Gills sues Defendant Verizon Corporation. (Doc 1-4). Gills’s Petition contains
no allegations regarding the citizenship of Cellco. (Doc. 1-4). In its Complaint for
Removal, Cellco alleges it was improperly named as Verizon Corporation, its proper
name being Cellco Partnership, doing business as Verizon Wireless. (Doc. 1). Cellco
further alleges it is a Delaware General Partnership with its principal place of
business in New Jersey. (Doc. 1). Cellco alleges none of its partners are incorporated
in or have their principal place of business in Louisiana. (Doc. 1).
However, while the state of incorporation and principal place of business are
sufficient jurisdictional facts to establish a corporation’s citizenship, Cellco is a
General Partnership. 2 The Fifth Circuit has held that the “the citizenship of a
partnership is determined by reference to the citizenship of each of its partners.” See
Int'l Paper Co., 116 F.3d 134, 135, 137 (5th Cir. 1997). However, neither Gills’s
Petition nor Cellco’s Complaint for Removal allege facts regarding the citizenship of
all of the partners of Cellco Partnership.
The Court cannot determine from the pleadings whether the parties are
diverse in citizenship. Therefore, federal jurisdiction is in question.
The Clerk of Court is DIRECTED to serve a copy of this order upon the Plaintiff
Heidi Ann Gills IMMEDIATELY upon receipt of proof of service or an appearance.
IT IS ORDERED that, not later than twenty-one (21) days from service of this
Order, Defendant Verizon Corporation SHALL FILE:
(1) a Jurisdictional
Memorandum setting forth specific facts, including the citizenship of all of the
partners of Cellco Partnership, doing business as Verizon Wireless, both at the time
of filing in state court and at the time of removal to federal court, that support a
finding that the parties are diverse in citizenship; and (2) a motion for leave to amend
the jurisdictional allegations of the Complaint for Removal pursuant to 28 U.S.C. §
1653 to adequately allege diversity jurisdiction.
IT IS FURTHER ORDERED that Plaintiff Heidi Ann Gills will be allowed
seven (7) days from receipt of Defendant Verizon Corporation’s memorandum
regarding jurisdiction to file a response.
THUS DONE AND SIGNED in chambers in Alexandria, Louisiana, this _____
day of November, 2017.
Joseph H.L. Perez-Montes
United States Magistrate Judge
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