Landry et al v. National Union Fire Insurance Co of Pittsburgh PA et al

Filing 14

SUA SPONTE JURISDICTIONAL BRIEFING ORDER: IT IS ORDERED that, not later than 21 days after the date of this order, the plaintiffs shall file a memorandum setting forth specific facts that support a finding that the parties are diverse in citizenship. The facts should be supported with summary-judgment-type evidence. The defendants will then be allowed 7 days to respond to the plaintiffs' memorandum. Signed by Magistrate Judge Patrick J Hanna on 8/18/2011. (crt,Keifer, K)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
DANNY P. LANDRY and
SUSAN R. LANDRY

CIVIL ACTION NO. 6:11-cv-0929

VERSUS

JUDGE DOHERTY

NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA,
CUSA, LLC d/b/a EL EXPRESSO,
CUSA EE, LLC d/b/a EL EXPRESSO,
and FRANCISCO G. AVELLANEDA

MAGISTRATE JUDGE HANNA

SUA SPONTE JURISDICTIONAL BRIEFING ORDER

The plaintiffs in this lawsuit contend that this Court has jurisdiction over this
action because the parties are diverse in citizenship and the amount in controversy
exceeds the jurisdictional threshold of $75,000.
Federal district courts have subject matter jurisdiction over civil actions in
which the amount in controversy exceeds $75,000 exclusive of interest and costs and
the parties are citizens of different states.1 The person seeking to invoke federal court
jurisdiction has the burden of proof of demonstrating, at the outset of the litigation,

1

28 U.S.C.A. § 1332.

that the federal court has authority to hear the case.2 Therefore, in this case, the
plaintiffs have the burden of showing that federal jurisdiction exists.
The undersigned finds that, because this is a wrongful death lawsuit, the
plaintiffs have established that the amount in controversy satisfies the jurisdictional
threshold. But the undersigned also finds that the plaintiffs have not established that
the parties to the lawsuit are diverse in citizenship.
The plaintiffs allege that they are citizens of Louisiana. They named four
defendants, all of which must be diverse in citizenship from the plaintiffs in order for
this court to have jurisdiction.
The first defendant is National Union Fire Insurance Company of Pittsburgh,
Pa. The plaintiff alleges that National Union is not a Louisiana citizen. That is not
sufficient. When jurisdiction is based on diversity, the citizenship of the parties must
be distinctly and affirmatively alleged.3 A corporation is deemed to be a citizen of
any state in which it is incorporated and any state where it has its principal place of
business,4 but no information was provided concerning where National Union was
organized or where it has its principal place of business. The undersigned finds,

2

St. Paul Reinsurance Co., Ltd. v. Greenburg, 134 F.3d 1250, 1253 (5th Cir.1998).

3

Mullins v. Testamerica Inc., 300 Fed. App’x 259, 259 (5th Cir. 2008).

4

28 U.S.C. § 1332(c)(1).
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therefore, that the plaintiffs have failed to establish in what state or states National
Union is a citizen. The undersigned further notes that National Union is not entitled
to claim its insured’s citizenship because both National Union and its alleged
insureds, El Expresso and/or Francisco G. Avellaneda, were sued in this lawsuit.5
Accordingly, the undersigned cannot determine whether the plaintiffs are diverse in
citizenship from National Union.
The second defendant is Francisco G. Avellaneda. He is alleged to be
domiciled in Texas, which is sufficient to establish that the plaintiffs are diverse in
citizenship from Mr. Avellaneda.
The third and fourth defendants are CUSA, LLC and CUSA EE, LLC. The
plaintiffs allege that both of these are foreign corporations, but their names suggest
that they are limited liability companies. If these are, in fact, corporations, the
plaintiffs have the burden of establishing in which states they were incorporated and
have their principal places of business. If they are limited liability companies, the
plaintiffs have the burden of establishing the citizenship of each of their members.
A limited liability company is a citizen of every state in which any member of
the company is a citizen,6 and “the citizenship of a LLC is determined by the

5

28 U.S.C. § 1332(c)(1).

6

See, Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1080 (5th Cir. 2008).
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citizenship of all of its members.”7 Therefore, the diversity analysis for a limited
liability company requires a determination of the citizenship of every member of the
company.8 If any one of the members is not diverse, the limited liability company is
not diverse. In this case, the plaintiffs have not presented evidence as to the
citizenship of either of these defendant’s members. The undersigned notes that these
defendants filed corporate disclosure statements (Rec. Doc. 9 and 10) but the
statements do not identify these companies’ members or provide information
concerning their citizenship. Therefore, the undersigned is unable to determine
whether the parties are – or are not – diverse in citizenship.
The plaintiffs have pleaded insufficient facts to establish that the parties are
diverse in citizenship. Therefore,
IT IS ORDERED that, not later than twenty-one days after the date of this
order, the plaintiffs shall file a memorandum setting forth specific facts that support

7

Harvey v. Grey Wolf, 542 F.3d at 1080. [Emphasis added.]

8

See, Harvey v. Grey Wolf, 542 F.3d at 1080; Grupo Dataflux v. Atlans Global Group,
L.P., 541 U.S. 567, 585, n. 1 (2004) (noting that courts of appeal have held that the citizenship of
each member of a limited liability company counts for diversity purposes); Carden v. Arkoma
Assocs., 494 U.S. 185, 196 (1990) (holding that the citizenship of an unincorporated entity or
association is based upon the citizenship of all of its members); Randolph v. Wyatt, 2010 WL
299257, 1 (W.D. La. 2010); Miracle Ear, Inc. v. Premier Hearing Aid Center, L.L.C., 2009 WL
5198183, 1 (W.D. La. 2009). See also Lawson v. Chrysler LLC, 2009 WL 961226, 2 (S.D. Miss.
2009) (“If the members are themselves partnerships, LLCs, corporations or other form of entity, their
citizenship must be alleged in accordance with the rules applicable to that entity, and the citizenship
must be traced through however many layers of members or partners there may be.”)
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a finding that the parties are diverse in citizenship. These facts should be supported
with summary-judgment-type evidence. The defendants will then be allowed seven
days to respond to the plaintiffs’ memorandum.
Signed at Lafayette, Louisiana, this 18th day of August 2011.

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