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)

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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 1 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 2 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 3

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