Robinson v. Wheeler et al

Filing 7

ORDER requiring amendment of the notice of removal within five (5) days of the date of this order, asserting an appropriate basis for federal court jurisdiction. Signed by Magistrate Judge Jane M. Virden on 8/20/15. (ncb)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
ANTHONY MARTEL ROBINSON
VS.

PLAINTIFF
CIVIL ACTION NO.: 4:15-cv-104-DMB-JMV
DEFENDANTS

ZACKERY WHEELER, WHEELER SUPPORTIVE
SERVICES, INC., and 1 WHEELER TRUCKING
COMPANY, LLC
ORDER
This matter is before the Court, sua sponte, for consideration of dismissal for lack of
federal jurisdiction as explained hereafter.1 Dismissal may be avoided by amendment of the
notice of removal within five (5) days of the date 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)). When
an original petition for removal fails to specifically allege the citizenship of the parties to
properly assert diversity jurisdiction, the removal petition may be amended to cure such
jurisdictional deficiency. See D. J. McDuffie, Inc. v. Old Reliable Fire Ins. Co., 608 F.2d 145,
146-47 (5th Cir. 1979). The Notice of Removal [1] states “Defendant 1 Wheeler Trucking
Company, LLC, is, and was at the time of the filing of this lawsuit, a corporation formed under
1

Although Plaintiff has not raised the issue of 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.”).

the laws of North Carolina, with its principal place of business in Charlotte, North Carolina.”
The Notice makes no reference, however, to the citizenship of the LLC 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). Thus, it does not appear on the face of the notice of removal that this Court has subject
matter jurisdiction. As noted, this defect in the allegations of the Notice may be corrected by the
filing, within five (5) days of the date of this order, of an amended notice of removal asserting
the citizenship2 of the parties--at the time of filing of the notice of removal--and establishing
complete diversity. Failure to do so will result in the Court dismissing this case for lack of
subject matter jurisdiction.
SO ORDERED this, the 20th day of August, 2015.

/s/ Jane M. Virden
UNITED STATES MAGISTRATE JUDGE

2

“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).