Petty v. Hestia Holdings, LLC

Filing 17

ORDER Requiring Second Amendment. Within five (5) days of the date of this order, Defendant must file an amended notice of removal. Signed by Magistrate Judge Jane M. Virden on 7/16/15. (ncb)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
BARBARA PETTY

PLAINTIFF

VS.

CIVIL ACTION NO.: 4:15-cv-56-DMB-JMV

HESTIA HOLDINGS, LLC

DEFENDANT

ORDER REQUIRING SECOND AMENDMENT
By Order [15] dated June 30 the Court directed Defendant Hestia Holdings, LLC, to
amend its Notice of Removal [1] within five days to correct defective allegations of jurisdiction.
The Court has reviewed the Amended Notice of Removal [16] filed by Defendant on July 6 and
finds it still wanting to the extent it alleges residency of the parties, including Plaintiff and
members of the various LLC’s related to Defendant.
As previously stated “[t]he 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)). “For purposes of diversity jurisdiction, the domicile of the parties as
opposed to their residence, is the key.” Combee v. Shell Oil Co., 615 F.2d 698, 700 (5th Cir.
1980). Accordingly, because the amended removal petition merely alleges the residences of the
various parties, this Court cannot allow the defective pleading to stand. Nevertheless, because it
appears from Defendant’s allegations of residence of the various parties that complete diversity
of citizenship likely exists in this case,1 the Court will afford Defendant one final opportunity to
correct the defects before the Court must consider dismissal of this case. Therefore, within five

1

See Stine v. Moore, 213 F.2d 446, 448 (5th Cir. 1954) (“Residence alone is not the equivalent of citizenship,
although the place of residence is prima facie the domicile.”).

(5) days of the date of this order, Defendant must file an amended notice of removal asserting the
citizenship of the parties.
SO ORDERED this, the 16th day of July, 2015.

/s/Jane M. Virden
UNITED STATES MAGISTRATE JUDGE

2