United States Fidelity and Guaranty Company v. Frias et al

Filing 5

SUA SPONTE ORDER REQUIRING BRIEFS ON ISSUE OF DIVERSITY JURISDICTION. Signed by District Judge Louis Guirola, Jr on 04/17/09 (Guirola, Louis)

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UNITED STATES DISTRICT COURT S O U T H E R N DISTRICT OF MISSISSIPPI S O U T H E R N DIVISION U N I T E D STATES FIDELITY AND G U A R A N T Y COMPANY V S. C O N S T A N C I O FRIAS, et al. P L A I N T I FF C A U S E NO. 1:08-CV-128-LG-RHW DEFENDANTS O R D E R REQUIRING BRIEFS ON SUBJECT MATTER JURISDICTION T h i s cause is before the Court sua sponte, for the purpose of requiring briefs on the issue o f subject matter jurisdiction. This case was filed in this Court on the basis of diversity j u r i s d i c t io n on April 4, 2008. Plaintiff United States Fidelity and Guaranty Company brings this d e c l a r a t o r y judgment action to determine whether it owes Defendant Civil Tech, Inc., indemnity a n d a defense for the two separate negligence actions filed against it stemming from the June 14, 2 0 0 7 collapse of the Bay St. Louis bridge. USF&G is alleged to be a Maryland corporation with its principal place of business there. The various defendants are alleged to be citizens of M is s is s ip p i, Texas, Mexico, Virginia, Iowa, Nevada, California, Delaware, and Missouri. Defendant Gulf Concrete, L.L.C., is alleged to be a Mississippi corporation with its principal p l a c e of business in Ridgeland, Mississippi. The Mississippi Secretary of State's website i n d i c a t e s that it is indeed a limited liability company. A limited liability company's citizenship is that of its members. Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1080 (5th Cir. 2008). No mention is made of Gulf Concrete's members. This is insufficient to demonstrate diversity ju ris d ic tio n . Mullins v. Testamerica, Inc., 300 Fed. Appx. 259, 259-60 (5th Cir. 2008). To date, no motion has been filed challenging whether diversity exists between USF&G a n d Gulf Concrete. "The absence of a dispute between the parties regarding the existence of d iv e rs ity jurisdiction is irrelevant, however, because `subject-matter jurisdiction cannot be c re a te d by waiver or consent.'" Id. at 260 (quoting Howery v. Allstate Ins. Co., 243 F.3d 912, 9 1 9 (5th Cir. 2001)). "The requirement that jurisdiction be established as a threshold matter . . . is `inflexible a n d without exception.'" Steel Co. v. Citizens for Better Env't, 523 U.S. 83, 94-95 (1998) (q u o tin g Mansfield, Coldwater & Lake Mich. Ry. v. Swan, 111 U.S. 379, 382 (1884)). FEDERAL R U LE OF CIVIL PROCEDURE 12(h)(3) provides that "whenever it appears by suggestion of the p a r tie s or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss th e action." "When jurisdiction is based on diversity, . . . the citizenship of the parties must be `d i s t in c t l y and affirmatively alleged.' `Failure adequately to allege the basis for diversity ju r is d i c tio n mandates dismissal.'" Mullins, 300 Fed. Appx. at 259 (quoting Stafford v. Mobil Oil C o r p ., 945 F.2d 803, 805 (5th Cir. 1991) and Getty Oil Corp. v. Ins. Co. of N. Am., 841 F.2d 1 2 5 4 , 1259 (5th Cir. 1988)). Because it is unclear whether diversity jurisdiction exists, pursuant to Mullins, the Court requests that the parties submit briefs on the issue of subject matter ju ris d ic tio n . Accordingly, IT IS THEREFORE ORDERED AND ADJUDGED that the parties submit briefs, not to exceed ten (10) pages, with supporting affidavits and evidence to the Court concerning w h e th e r this Court has subject matter jurisdiction by May 4, 2009. S O ORDERED AND ADJUDGED this the 17 th day of April, 2009. s/ Louis Guirola, Jr. LOUIS GUIROLA, JR. U N IT E D STATES DISTRICT JUDGE 2

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