Carlson v. Charter Communications

Filing 31

ORDER: case will be dismissed on 2/3/17 unless an amended Notice of Removal is field by Dft appropriately setting forth and establishes this Court's diversity. All pending motions are denied without prejudice to renewal, if appropriate, upon determination of record by Court that jurisdiction has been properly invoked. Motions terminated: 11 , 23 , 3 and 13 . Signed by Judge Sam E Haddon on 1/25/2017. (DED)

FILED
JAN 2 5 2017
Clerk, U.S. District Court
District Of Montana
Helena

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
LANCE CARLSON,
Plaintiff,

No. CV 16-86-H-SEH

vs.

ORDER
CHARTER COMMUNICATIONS,
LLC,
Defendant.
On August 12, 2016, Plaintiff Lance Carlson commenced this action in the
Montana First Judicial District Court, Lewis and Clark County. 1 The Complaint
alleged, inter alia:
1.

1

Plaintiff Lance Carlson is a resident of Lewis and
Clark County, Helena, Montana.

See Docs. 1-1, 9, 10.
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2.

Defendant Charter Communications, LLC
(Charter) is a Delaware corporation doing business
in Lewis and Clark County, Montana. 2

Defendant Charter Communications, LLC filed a Notice of Removal on
September 13, 2016, claiming federal jurisdiction under "28 U.S.C. § 1332 on the
basis of diversity of citizenship and amount in controversy." 3
The Notice of Removal claimed diversity jurisdiction grounded upon:
6.
Carlson is a resident of Lewis and Clark County,
Helena, Montana. (Compl. ~ 1.) As such, Carlson is a
Montana citizen.
7.
Charter is a limited liability company with all of
its membership interest owned by Charter
Communications Operating, LLC. See Disclosure
Statement filed simultaneously with this Notice. Charter
Communications Operating, LLC in tum is a limited
liability company with all of its membership interest
owned by Charter Communications, Inc. Id. Charter
Communications, Inc. is a Delaware corporation with is
[sic] principal place of business in Stamford,
Connecticut. Id. Charter is therefore a citizen of
Delaware and Connecticut. See Johnson v. Columbia
Props. Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006)
("[A]n LLC is a citizen of every state of which its
owners/members are citizens."). 4

2

Doc. 1-1 at 1.

3

Doc. 1at1.

4

Doc. 1 at 2-3.
-2-

On September 29, 2016, Plaintiff filed in this Court Plaintiffs First
Amended Complaint and Jury Demand5 asserting, inter alia:
1.

Plaintiff Lance Carlson is a resident of Lewis and
Clark County, Helena, Montana.

2.

Defendant Charter Communications, LLC
(Charter) is a Delaware corporation doing business
in Lewis and Clark County, Montana.

3.

Venue and jurisdiction is proper in this Court
based on removal by Charter. 6

On December 9, 2016, Plaintiff filed in this Court Plaintiffs Second
Amended Complaint and Jury Demand7 again asserting, inter alia:
1.

Plaintiff Lance Carlson is a resident of Lewis and Clark
County, Helena, Montana.

2.

Defendant Charter Communications, LLC
(Charter) is a Delaware corporation doing business
in Lewis and Clark County, Montana.

3.

Venue and jurisdiction is proper in this Court
based on removal by Charter. 8

Defendant responded to the complaint and to the amended complaints with

5

Doc. 6.

6

Doc. 6 at 2.

7

Doc. 22.

8

Doc. 22 at 1-2.

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separate partial motions to dismiss and supporting briefs. 9 A brief in response to
each motion was filed by Plaintiff. 10 One reply was filed. 11
On October 11, 2016, Plaintiff filed Plaintiffs Brief in Support of Motion to
Certify Quesiton [sic] to the Montana Supreme Court, 12 and supporting brief. 13
Defendant responded on October 25, 2016. 14 Plaintiff filed a reply on November
8, 2016. 15
The Court has determined, upon review and assessment of all of the filings
referenced above, that jurisdiction of the case in this Court has not been
appropriately established. Notwithstanding that diversity of citizenship is claimed,
such has not been shown of record.
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

9

See Docs. 3, 4, 13, 14, 28, 29.

10

See Docs. 8, 16, 30.

11

See Doc. 19.

12

Doc. 11.

13

Doc. 12.

14

Doc. 15.

15

Doc. 17.
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removal is proper. Id. Federal jurisdiction must be rejected ifthere is any doubt
as to the right of removal in the first instance. Id.
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 court's
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).

Plaintiffs pleadings assert Plaintiff is a "resident" of Montana. 16 Defendant
in its Notice of Removal claims that "Carlson is a resident of Lewis and Clark
County, Helena, Montana" and "[a]s such, Carlson is a Montan citizen." 17
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" to be well-pleaded by claims of "residency." Id. Montana residency
(pleaded here) is not the legal equivalent to "citizenship" (not pleaded) and cannot
be accepted as such. Plaintiffs citizenship, diverse from that of Defendant, has
not been well-pleaded.
Plaintiff, since removal, has twice amended his complaint, invoking, in each
instance, this Court's diversity jurisdiction. The original Complaint and both

16

See Docs. 1-1, 6, 22.

17

Doc. 1 at 2.

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amended complaints filed after removal erroneously identify Defendant Charter
Communications, LLC as "a Delaware corporation," 18 although Defendant's
Notice ofRemoval 19 and Rule 7.1 Corporate Disclosure Statement20 plainly
identify Defendant as an LLC. Plaintiffs claims that "Defendant Charter
Communications, LLC (Charter) is a Delaware corporation doing business in
Lewis and Clark County, Montana" 21 fall short of meeting its obligation to
appropriately plead diversity of citizenship.
ORDERED:
1.

All pending motions22 are DENIED without prejudice to renewal, if

appropriate, upon determination of record by this Court that jurisdiction has
properly been invoked.
2.

This case will be dismissed on February 3, 2017, unless an amended

Notice of Removal is filed by Defendant on or before that date which

18

Docs. 1-1 at 1, 6 at 2, 22 at 2.

19

Doc. 1.

20

Doc. 2.

21

Docs. 1-1 at 1, 6 at 2, 22 at 2.

22

Docs. 3, 13, 28.
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appropriately sets forth and establishes this Court's diversity jurisdiction. 23
DATED this

d5~y ofJanuary, 2017.

i~fd:k/tt!h:)
United States District Judge

23

See 28 U.S.C. § 1653; see also 15 James Wm. Moore et al., Moore's Federal Practice
§ 102.17[1], at 102-48 (3d ed. 2016) (explaining "[s]ection 1653's liberal amendment rule
permits a party who has not alleged that diversity exists to amend the pleadings even as late as on
appeal"); Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (stating "defendant always has
the burden of establishing that removal is proper").
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