Dupuis v. L R C Energy et al

Filing 15

SUA SPONTE BRIEFING ORDER: IT IS ORDERED that, no more than 21 days after the date of this order, Ms Lisco shall file a memorandum setting forth specific facts that support a finding that the parties are diverse in citzenship. The plaintiff will then be afforded seven days in which to respond to Ms Lisco submission. Signed by Magistrate Judge Patrick J Hanna on 12/09/2015. (crt,Williams, L)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
CASEY REED DUPUIS

CIVIL ACTION NO. 6:15-CV-02377

VERSUS

JUDGE DOHERTY

LRC ENERGY, LLC, ERICA LISCO,
AND WELLS FARGO BANK, N.A.

MAGISTRATE JUDGE HANNA

SUA SPONTE BRIEFING ORDER

Defendant Erica Lisco removed the action, alleging that this Court has subjectmatter jurisdiction over this action under 28 U.S.C. § 1332, because the parties are
diverse in citizenship and the amount in controversy exceeds $75,000.00. The
undersigned reviewed the pleadings but cannot determine whether the requirements
for diversity jurisdiction have been satisfied.
Federal courts exercise limited jurisdiction.1 For that reason, a suit is presumed
to lie outside a federal court's jurisdiction until the party invoking federal-court
jurisdiction establishes otherwise.2 Because “the effect of removal is to deprive the
state court of an action properly before it, removal raises significant federalism

1

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); Howery v.
Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001).
2

Kokkonen v. Guardian Life, 511 U.S. at 377; Howery v. Allstate, 243 F.3d at 916.

concerns.”3 The removal statute is therefore to be strictly construed, and any doubt
about the propriety of removal must be resolved in favor of remand and against
federal-court jurisdiction.4 Similarly, any ambiguities must be construed against
removal.5 To determine whether jurisdiction is present for removal, the court must
consider the claims in the state court petition as they existed at the time of removal.6
The party invoking the court's subject-matter jurisdiction has the burden of
establishing the court's jurisdiction.7 Therefore, when a lawsuit is removed from state
court, as this suit was, the removing party must bear that burden.8 Accordingly, Ms.
Lisco, the removing party, has the burden of establishing that this Court has
subject-matter jurisdiction over this action.

3

Carpenter v. Wichita Falls Indep. Sch. Dist., 44 F.3d 362, 365 (5th Cir. 1995).

4

Carpenter v. Wichita Falls, 44 F.3d at 366; Acuna v. Brown & Root Inc., 200 F.3d
335, 339 (5 Cir. 2000).
th

5

Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002).

6

Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d at 723, citing Cavallini v.
State Farm Mut. Auto Ins. Co., 44 F.3d 256, 264 (5th Cir. 1995).
7

St. Paul Reinsurance Co., Ltd. v. Greenberg, 134 F.3d 1250, 1253–54 (5th Cir. 1998);
Gaitor v. Peninsular & Occidental S.S. Co., 287 F.2d 252, 253 (5th Cir. 1961).
8

Boone v. Citigroup, Inc., 416 F.3d 382, 388 (5th Cir. 2005); Shearer v. Southwest
Service Life Ins. Co., 516 F.3d 276, 278 (5th Cir. 2008).
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Ms. Lisco removed this action under 28 U.S.C. § 1332, the statute concerning
diversity jurisdiction. To remove a case based on diversity jurisdiction, a defendant
must demonstrate “that all of the prerequisites of diversity jurisdiction contained in
28 U.S.C. § 1332 are satisfied.”9
Because the petition alleges that Ms. Lisco converted approximately $100,000
in money owed to LRC Energy, LLC, it is facially apparent that the amount-incontroversy requirement is satisfied in this case. Therefore, the court finds that the
monetary requirement for diversity jurisdiction is satisfied.
However, Ms. Lisco has not satisfied the statute’s citizenship requirement. The
jurisdictional statute that Ms. Lisco is relying upon, 28 U.S.C. § 1332(a), requires
complete diversity of citizenship; that is, a district court cannot exercise subject
matter jurisdiction if any plaintiff shares the same citizenship as any defendant.10 The
burden is on Ms. Lisco to prove the citizenship of each and every person or entity that
was a party to the suit at the time of removal.
The lawsuit has four parties, one plaintiff – Casey Dupuis – and three
defendants – LRC Energy, LLC, Erica Lisco, and Wells Fargo Bank, NA.

9

Smallwood v. Illinois Central Railroad Co., 385 F.3d 568, 572 (5th Cir. 2004) (en

banc).
10

Corfield v. Dallas Glen Hills LP, 355 F.3d 853, 857 (5th Cir. 2003), citing
Strawbridge v. Curtiss, 3 Cranch 267, 7 U.S. 267, 2 L.Ed. 435 (1806).
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The petition does not allege Ms. Dupuis’s citizenship. In the removal notice,
Ms. Lisco alleges that Ms. Dupuis is a Louisiana citizen. If this allegation is not
refuted by Ms. Dupuis, it will be accepted by this Court.
The petition alleges that Ms. Lisco is a Florida resident. The citizenship of a
natural person is determined by the state in which she is domiciled, and domicile is
a combination of both a person's residence and her intent to remain there
permanently.11 Therefore, “an allegation that a party is a resident of a certain state is
not a sufficient allegation of his citizenship in that state.”12 In the removal notice,
however, Ms. Lisco alleges that she is a Florida citizen. This allegation will be
accepted by this Court.
Defendant Wells Fargo Bank, N.A. consented to the removal of this action. In
its consent, it represented that it is a national bank with its main office in South
Dakota. The United States Supreme Court has determined that, for jurisdictional
purposes, a national bank is a citizen of the state where it has its main office.13
Therefore, Wells Fargo is a citizen of South Dakota.

11

Hollinger v. Home State Mut. Ins. Co., 654 F.3d 564, 571 (5th Cir. 2011).

12

Delome v. Union Barge Line Co., 444 F.2d 225, 233 (5th Cir. 1971).

13

Wachovia Bank v. Schmidt, 546 U.S. 303, 318 (2006) (interpreting 28 U.S.C. § 1348).
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In the petition, it is alleged that plaintiff LRC Energy, LLC is a limited liability
company incorporated in the State of Louisiana with its principal place of business
in St. Landry Parish, Louisiana. This is insufficient to establish the citizenship of the
company.

Although 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,14 the rule
regarding limited liability companies is different. A limited liability company is a
citizen of every state in which any member of the company is a citizen,15 and “the
citizenship of a LLC is determined by the citizenship of all of its members.”16
Therefore, the diversity analysis for a limited liability company requires a
determination of the citizenship of every member of the company.17 Ms. Dupuis
contends that she is the sole member of LRC. If so, then LRC is a citizen of
Louisiana only. But Ms. Lisco contends that she is also a member of LRC. If so,

14

28 U.S.C. § 1332(c)(1).

15

See, Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1080 (5th Cir. 2008).

16

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

17

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). See also Wright v. JPMorgan Chase
Bank, NA, No. 09-cv-0482, 2009 WL 854644, at *1 (W.D. La. Mar. 26, 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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then LRC is a citizen of both Louisiana and Florida. In either case, LRC is not
diverse in citizenship from the plaintiff. In the removal notice, Ms. Lisco failed to
offer any explanation why LRC’s lack of diversity should be overlooked.
Furthermore, LRC did not consent to the removal of this action. “[A]ny doubt about
the propriety of removal must be resolved in favor of remand.”18 Accordingly,
IT IS ORDERED that, not more than twenty-one days after the date of this
order, Ms. Lisco shall file a memorandum setting forth specific facts that support a
finding that the parties are diverse in citizenship. These facts should be supported
with summary-judgment-type evidence. Ms. Lisco should additionally present any
legal arguments for disregarding the lack of diversity between the plaintiff and LRC
and any legal argument for disregarding LRC’s failure to timely consent to the
removal of this action. The plaintiff will them be afforded seven days in which to
respond to Ms. Lisco’s submission.
Signed at Lafayette, Louisiana, on December 9, 2015.

____________________________________
PATRICK J. HANNA
UNITED STATES MAGISTRATE JUDGE

18

Gasch v. Hartford Acc. & Indem. Co., 491 F.3d 278, 281–82 (5th Cir. 2007).
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