Malone v. Kathleen D. Murray Revocable Living Trust

Filing 3

ORDERED: This case will be remanded to state court on 8/11/17 unless Dft files an amended notice of removal properly alleging jurisdiction on or before that date. Signed by Judge Sam E Haddon on 8/4/2017. (ELL)

FILED
AUG 0 4 2017
Clerk, U.S. District Court
District Of Montana
Helena

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BUTTE DIVISION
RILEY MALONE, individually, and
formerly d/b/a RIM CONSOLIDATED
MINING INC.,

No. CV-17-49-BU-SEH

Plaintiff,
ORDER
vs.
KATHLEEND. MURRAY
REVOCABLE LIVING TRUST,
Defendant.
Defendant removed this action from state court by Notice ofRemoval 1 filed
July 28, 2017. However, jurisdiction is not well-pleaded.
The removal statute is strictly construed against removal jurisdiction. Gaus
v. Miles. Inc., 980 F.2d 564, 566 (9th Cir. 1992). The "strong presumption" against
removal jurisdiction requires the defendant to carry the burden of showing
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Doc. 1.

removal is proper. Id. Federal jurisdiction must be rejected ifthere is any doubt as
to the right of removal in the first instance. Id.
The Notice asserts federal jurisdiction under 28 U.S.C. §§ 1332 and 1441.
28 U.S.C. §1332(a)(l) states:
(a) The district courts shall have original
jurisdiction of all civil actions where the matter in
controversy exceeds the sum or value of $75,000,
exclusive of interest and costs, and is between( 1) citizens of different States;
Only residence of Plaintiff is alleged. Citizenship is not. The diversity
statute speaks of citizenship, not of residency. Kanter v. Warner-Lambert, 265
F.3d 853, 857 (9th Cir. 2001). Citizenship cannot be "deemed" by residency. Id.
"So long as such an entity is unincorporated ... it possesses the citizenship
of all its members." Americold Realty Trust v. Conagra Foods Inc., 136 S. Ct.
1012, 1017 (2016) (holding that a trust sued in its name takes the citizenship of
each of its members). The citizenship of each and all of Kathleen D. Murray
Revocable Living Trust's members is not alleged. It is thus impossible for the
Court to determine whether complete diversity exists.
Fed. R. Civ. P. 12(h)(3) contemplates that lack of jurisdiction can be raised
at any time. Moreover, the objection may be raised by a party, or by the courts

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own initiative, at any stage in the litigation, even after the trial and judgment entry.
Arbaugh v. Y & H Corp., 546 U.S. 500, 506 (2006).
ORDERED:
This case will be remanded to state court on August 11, 201 7, unless
Defendant files an amended notice of removal properly alleging jurisdiction on or
before that date.
DATED this

1f1ay of August, 2017.

d.hJJ!if-utJni
United States District Judge

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