Heafner Motors, Inc. v. BellSouth Telecommunications, LLC et al

Filing 4

ORDER requiring the Defendant to amend the removal petition within seven (7) days in order to assert an appropriate basis for federal court jurisdiction and avoid dismissal. Signed by Magistrate Judge Jane M. Virden on 11/17/2015. (bbf)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
HEAFNER MOTORS, INC.
VS.

PLAINTIFF
CIVIL ACTION NO.: 3:15-cv-195-MPM-JMV

BELLSOUTH TELECOMMUNICATIONS,
LLC, d/b/a AT&T MISSISSIPPI and JOHN
DOES 1, 2 and 3

DEFENDANTS

ORDER
This matter is before the court, sua sponte, to dismiss this cause of action for lack of
federal jurisdiction as explained hereafter.1 Such dismissal may be avoided by an amendment of
the removal petition within seven (7) days of this order, asserting an appropriate basis for federal
court jurisdiction.
The notice of removal in this case purports to found federal jurisdiction on diversity of
citizenship under 28 U.S.C. § 1332, but it does not adequately identify the citizenship of the
parties. “The party asserting diversity jurisdiction must ‘distinctly and affirmatively allege[ ]’
the citizenship of the parties.” Molina v. Wal-Mart Stores Texas, L.P., 535 F.Supp.2d 805, 807
(W.D. Tex. 2008) (citing Howery v. Allstate Ins. Co., 243 F.3d 912, 919 (5th Cir. 2001)).
The notice of removal merely states that Bellsouth Telecommunications, LLC is doing
business as AT&T Mississippi, but makes no reference to the citizenship of Bellsouth
Telecommunications, LLC’s members. For diversity jurisdiction purposes, a limited liability
company’s citizenship is determined by the citizenship of each of its members. Harvey v. Grey
Wolf Drilling Co., 542 F.3d 1077, 1079-80 (5th Cir. 2008).

1

Although Plaintiff has not argued a failure in this respect, the court must make an independent inquiry into its jurisdiction. Grupo Dataflux v.
Atlas Global Group, L.P., 541 U.S. 567, 593 (2004) (Ginsburg, J., dissenting) (citing Bender v. Willamsport Area Sch. Dist., 475 U.S. 534, 541
(1986)) (“[I]t is the obligation of both district court and counsel to be alert to jurisdictional requirements.”).

Further, the notice of removal fails to state Plaintiff’s principal place of business. The
notice of removal states that “Plaintiff is a Mississippi for-profit corporation located in Panola
County, Mississippi.” “A corporation's citizenship derives, for diversity jurisdiction purposes,
from its State of incorporation and principal place of business.” Wachovia Bank v. Schmidt, 546
U.S. 303, 318 (2006) (citing 28 U.S.C. § 1332(c)(1)).
Thus, it does not appear that this court has subject matter jurisdiction. Within seven (7)
days of this order, the Defendant must amend its removal petition to properly state the
citizenship of the parties and establish a basis for federal court jurisdiction. Failure to do so will
result in the court dismissing the complaint for lack of subject matter jurisdiction.

SO ORDERED this, the 17th day of November, 2015.

/s/Jane M. Virden
UNITED STATES MAGISTRATE JUDGE