Letsinger v. Stennette et al
Filing
11
MEMORANDUM ORDER: Despite the passage of two years, there is no evidence of service on defendants Michael Stennette or Thomas Fuels Lubricants & Chemicals, Inc. The claims against those two defendants will be subjectto dismissal, without further noti ce, if Plaintiff does not file evidence of service on those two defendants by 10/14/14 or obtain, based on a showing of good cause to excuse the lengthy delay, an extension of time to complete service. Signed by Magistrate Judge Mark L Hornsby on 10/01/14. (crt,Delgado, S)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
DAVID LETSINGER
CIVIL ACTION NO. 12-cv-2444
VERSUS
JUDGE FOOTE
MICHAEL STENNETTE, ET AL
MAGISTRATE JUDGE HORNSBY
MEMORANDUM ORDER
This case was removed from state court in September 2012. Federal Rule of Civil
Procedure 4(m) requires service be completed within 120 days of filing. Despite the passage
of two years, there is no evidence of service on defendants Michael Stennette or Thomas
Fuels Lubricants & Chemicals, Inc. The claims against those two defendants will be subject
to dismissal, without further notice, if Plaintiff does not file evidence of service on those two
defendants by October 14, 2014 or obtain, based on a showing of good cause to excuse the
lengthy delay, an extension of time to complete service.
Zurich removed the case, so it has the burden of establishing diversity of citizenship.
Zurich set forth what appear to be appropriate allegations with regard to its citizenship and
that of the other corporate defendant. It describes Plaintiff as a “resident” of Louisiana, but
it is domicile rather than mere residency that decides citizenship for diversity purposes, and
“[i]t is well established that an allegation of residency does not satisfy the requirement of an
allegation of citizenship.” Great Plains Trust Co. v. Morgan Stanley, 313 F.3d 305, 310 n.
2 (5th Cir. 2002), quoting Strain v. Harrelson Rubber Co., 742 F.2d 888 (5th Cir. 1984).
Plaintiff described himself in his state court petition as both a resident and
“domiciliary” of Louisiana, so the citizenship of Plaintiff is adequately reflected in the
record. Defendant Stennette, however, is described in both the state court petition and notice
of removal as merely a “resident” of Texas. If Zurich wishes to ensure that it has met its
burden of establishing subject-matter jurisdiction, it should file an amended notice of
removal and allege the citizenship/domicile of individual parties such as Stennette or ensure
that Stennette includes an express allegation of such in his answer.
THUS DONE AND SIGNED in Shreveport, Louisiana, this 1st day of October, 2014.
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