Malone v. Kathleen D. Murray Revocable Living Trust

Filing 8

ORDERED: This case is REMANDED to the Montana Fifth Judicial District Court for lack of jurisdiction. Signed by Judge Sam E Haddon on 8/14/2017. (ELL)

FILED
AUG 14 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. Jurisdiction was not well-pleaded. The Court granted Defendant the
opportunity to file an amended notice of removal on or before August 11, 2017, by

1

Doc. 1.

Order of August 4, 2017. 2 Defendant filed its Amended Notice ofRemoval 3 on
August 4, 2017. However, jurisdiction is still 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
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. It
is thus impossible for the Court to determine whether complete diversity exists.

2

Doc. 3.

3

Doc. 4.

2

ORDERED:
This case is REMANDED to the Montana Fifth Judicial District Court for
lack of jurisdiction.
DATED this

/'f

+;. of August, 2017.
day

~~
~~~DDON
United States District Judge

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