Roberson v. Respironics, Inc. et al

Filing 14

ORDER. Signed by District Judge Debra M. Brown on 11/20/20. (jla)

Case: 4:20-cv-00174-DMB-JMV Doc #: 14 Filed: 11/20/20 1 of 2 PageID #: 601

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
FABION ROBERSON, Individually,
and on behalf of all Wrongful Death
Beneficiaries of Mella R. Lartheridge,
Deceased

PLAINTIFF

V.

NO. 4:20-CV-174-DMB-JMV

RESPIRONICS, INC. d/b/a Philips
Respironics; SCOTT NELSON, M.D.;
and JOHN DOES 1-10

DEFENDANTS
ORDER

On April 29, 2019, Fabion Roberson filed a complaint in the Circuit Court of Bolivar
County, Mississippi, against Respironics, Inc. d/b/a Philips Respironics, Scott Nelson, M.D., and
“John Does 1-10.” Doc. #2. Roberson voluntarily dismissed Nelson without prejudice on
September 9, 2020. Doc. #9-28. On October 6, 2020, Respironics, asserting diversity jurisdiction,
removed the case to the United States District Court for the Northern District of Mississippi. 1 Doc.
#1. The notice of removal states that “Respironics is a citizen of Delaware/Pennsylvania” and “is
a Delaware limited liability company … with its principal place of business at 1010 Murry Ridge
Lane, Murrysville, Pennsylvania 15668.” Id. at 6.
A federal court has “a continuing obligation to assure itself of its own jurisdiction, sua
sponte if necessary.” United States v. Pedroza-Rocha, 933 F.3d 490, 493 (5th Cir. 2019). With
respect to the citizenship of a limited liability company, “a party must specifically allege the
citizenship of every member of [a] LLC.” MidCap Media Fin., L.L.C. v. Pathway Data, Inc., 929

1

In its notice of removal, Respironics alleges that the case became removable once Nelson was dismissed because
only diverse parties remain in the case and that removal is timely because it was “filed within 30 days of becoming
removable.” Doc. #1 at 1–2. Roberson disputes the timeliness of the removal in his motion to remand. Doc. #5 at
1.

Case: 4:20-cv-00174-DMB-JMV Doc #: 14 Filed: 11/20/20 2 of 2 PageID #: 602

F.3d 310, 314 (5th Cir. 2019) (internal quotation marks omitted). While Respironics asserts that
it is a citizen of Delaware and Pennsylvania, such is insufficient to allege its citizenship because it
does not provide the citizenship of its members, as is required to establish the citizenship of a
limited liability company. See Smith v. Toyota Motor Corp., 978 F.3d 280, 282 (5th Cir. 2020)
(“To adequately allege the citizenship of … a limited liability corporation, Smith needed to
‘specifically allege the citizenship of every member of every LLC or partnership involved in a
litigation.’”) (quoting Settlement Funding, L.L.C. v. Rapid Settlements, Ltd., 851 F.3d 530, 536
(5th Cir. 2017)). Because the notice of removal fails to identify the members of Respironics and
the citizenship of each member, diversity jurisdiction has not been established. See MidCap, 929
F.3d at 313–14 (“Because federal courts have limited jurisdiction, parties must make ‘clear,
distinct, and precise affirmative jurisdictional allegations’ in their pleadings. … [B]ecause MidCap
is an LLC, the pleadings needed to identify MidCap’s members and allege their citizenship.”).
Accordingly, within seven (7) days of this order, Respironics, as the party asserting
diversity jurisdiction, may file an amendment to the notice of removal pursuant to 28 U.S.C. §
1653 only to cure the deficient allegations of its citizenship. 2 If it fails to do so, this action will be
remanded for lack of jurisdiction.
SO ORDERED, this 20th day of November, 2020.
/s/Debra M. Brown
UNITED STATES DISTRICT JUDGE

2

Respironics, Inc. must show that diversity of citizenship existed at the time of removal. See Tex. Beef Grp. v. Winfrey,
201 F.3d 680, 686 (5th Cir. 2000) (“When removal is based on diversity of citizenship, diversity must exist at the time
of removal.”).