Frazier v. Evans Realty, Inc. et al

Filing 15

ORDER requiring amended notice of removal. Signed by Magistrate Judge Jane M. Virden on 10/18/17. (ncb)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
LATASHA FRAZIER

PLAINTIFFS

VS.

CIVIL ACTION NO.: 4:17-CV-128-DMB-JMV

EVANS REALTY, INC. AND
GREENVILLE, LLC

DEFENDANTS
ORDER

This matter is before the Court, sua sponte, for consideration of remand for lack of federal
jurisdiction as explained hereafter.1 Remand may be avoided by the filing of an amended notice
of removal—within seven (7) days of the date of this order—that includes allegations that establish
an appropriate basis for federal court jurisdiction.
The Notice of Removal (hereinafter “Notice”) [1] purports to establish federal jurisdiction
on diversity of citizenship under 28 U.S.C. § 1332(a), but it does not adequately identify the
citizenship of all 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)).
Here, the Notice states in relevant part:
The Amended Complaint filed on August 21, 2017 shows that Latasha Frazier is
an adult resident citizen of Greenville, Washington County, Mississippi . . . and that
Greenville, LLC is an Alabama limited liability company with is principal place of
business in Phenix City, Alabama. Amended Complaint, Ex. C, ¶¶ 1-3.

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The Court is obligated to make an independent inquiry into its jurisdiction. See 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.”).

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However, upon review of the Amended Complaint, with respect to Plaintiff it is only
alleged that “Latasha Frazier is an adult resident of Greenville, Washington County
Mississippi.” Amended Compl. ¶ 1 [emphasis added]. And, of course, the pleading
merely makes reference to Greenville, LLC’s state of organization and principal place of
business.
“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 Notice in this case references the allegations of the Amended Complaint, which in
only references Plaintiff’s state of residence, the Notice fails to properly allege Plaintiff’s
citizenship.
Moreover, for purposes of diversity jurisdiction, “the citizenship of a LLC is determined
by the citizenship of all its members.” Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1080
(5th Cir. 2008). Because the Notice in this case fails to identify the members of Greenville, LLC,
and each member’s citizenship, the Notice is defective.
As noted, the defects in the jurisdictional allegations of the Notice descried above may be
corrected by the filing, within seven (7) days of the date of this order, of an amended notice of
removal that includes allegations which establish this Court has jurisdiction over this action.
Failure to do so will result in the Court recommending remand of this case for lack of subject
matter jurisdiction.
SO ORDERED this, the 18th day of October, 2017.

/s/ Jane M. Virden
UNITED STATES MAGISTRATE JUDGE

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