Grano v. Weese et al

Filing 22

MEMORANDUM OPINION AND ORDER by Magistrate Judge Stephan M. Vidmar. Defendants must amend the Notice of Removal or file another paper to properly allege diversity of citizenship, if such allegations can be made in compliance with the dictates of Rule 11 of the Federal Rules of Civil Procedure, no later than May 18, 2017. (am)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MARC GRANO,
Plaintiff,
v.

No. 17-cv-0287 SMV/KK

MELVIN J. WEESE and
SWIFT TRANSPORTATION COMPANY,
Defendants.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court sua sponte, following its review of the record in this
case. The Court has a duty to determine whether subject matter jurisdiction exists sua sponte.
See Tuck v. United Servs. Auto. Ass’n, 859 F.2d 842, 844 (10th Cir. 1988). The Court, having
considered the pleadings, the Notice of Removal, the Corporate Disclosure Statement, and the
applicable law, concludes that the record does not appear to support diversity jurisdiction
because the citizenship of the parties is not adequately alleged. Therefore, the Court will order
Defendants to file an amended notice of removal or other paper alleging the citizenship of each
party, if the necessary jurisdictional allegations can be made in compliance with the dictates of
Rule 11 of the Federal Rules of Civil Procedure, no later than May 18, 2017.
BACKGROUND
On March 6, 2017, Defendants filed their Notice of Removal under 28 U.S.C. § 1332.
[Doc. 1] at 1–2. The Notice asserts that there is complete diversity between Plaintiff and
Defendants and that the amount in controversy exceeds $75,000. Id. at 2. In support of their
claim of diversity of citizenship, Defendants repeat the assertions from Plaintiff’s Amended

Complaint that Plaintiff is a “resident” of New Mexico and Defendant Weese is a “resident” of
Oklahoma.

Id. at 1–2 (citing [Doc. 1-2] at 1).

Defendants, however, do not allege the

citizenship of either Plaintiff or Defendant Weese.
Even though the Amended Complaint names “Swift Transportation Company” as one of
the defendants, the Answer refers to “Swift Transportation Company of Arizona, LLC.”
Compare [Doc. 1-2] at 1, with [Doc. 2] at 1. In their Notice of Removal, Defendants assert that
“Swift Transportation Company of Arizona, LLC is a Delaware Limited Liability Company with
its principal place of business in the State of Arizona.” Id. at 2. Swift’s Corporate Disclosure
Statement indicates that the sole member of Swift Transportation Company of Arizona, LLC, is
Swift Transportation Co, LLC. The sole member of Swift Transportation Co, LLC, is Swift
Transportation Company, which is a publicly traded corporation. [Doc. 11]. However, the Court
finds no indication in the record of the citizenship of Swift Transportation Company.
LEGAL STANDARDS
The federal statute providing for the removal of cases from state to federal court was
intended to restrict rather than enlarge removal rights. Greenshields v. Warren Petroleum Corp.,
248 F.2d 61, 65 (10th Cir. 1957). Federal courts, therefore, are to strictly construe the removal
statutes and to resolve all doubts against removal. Fajen v. Found. Reserve Ins. Co., Inc., 683
F.2d 331, 333 (10th Cir. 1982). The removing party bears the burden of establishing the
requirements for federal jurisdiction. Martin v. Franklin Capital Corp., 251 F.3d 1284, 1290
(10th Cir. 2001).

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District courts have original jurisdiction of all civil actions where the amount in
controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between
citizens of different States. § 1332(a). When a plaintiff files a civil action in state court over
which the federal district courts would have original jurisdiction based on diversity of
citizenship, the defendant may remove the action to federal court, provided that no defendant is
a citizen of the State in which such action is brought. See 28 U.S.C. § 1441(a), (b).
Jurisdiction under § 1332 requires diversity of citizenship.

The party asserting

jurisdiction must plead citizenship distinctly and affirmatively; allegations of residence are not
enough. Siloam Springs Hotel, L.L.C. v. Century Sur. Co., 781 F.3d 1233, 1238 (10th Cir.
2015). Domicile, the equivalent of state citizenship, requires more than mere residence; domicile
exists only when residence is coupled with an intention to remain in the state indefinitely.
Middleton v. Stephenson, 749 F.3d 1197, 1200 (10th Cir. 2014).
Determining the citizenship of a limited liability company is different from determining
the citizenship of a corporation under § 1332. A corporation is deemed to be a citizen of the
state in which it is incorporated and in which it maintains its principal place of business. See
§ 1332(c). Limited liability companies, however, are treated as partnerships for citizenship
purposes and are, therefore, citizens of each and every state in which any member is a citizen.
Siloam Springs, 781 F.3d at 1234.
ANALYSIS
Here, the facts set forth in the record do not sufficiently establish the citizenship of the
parties. First, the Amended Complaint and the Notice of Removal indicate that Plaintiff and
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Defendant Weese are “residents” of New Mexico and Oklahoma respectively and do not mention
their states of “citizenship.” Next, the record does not indicate the citizenship of Defendant
Swift Transportation Company.

Because it appears that Defendant Swift Transportation

Company is a corporation, see [Doc. 11], both the state of its incorporation and the state in which
it maintains its principal place of business must be alleged.

See § 1332(c).

If, however,

Defendants Swift is actually a limited liability company, the states of citizenship of each and
every one of its members must be alleged. See Siloam Springs, 781 F.3d at 1234.
The Court will give Defendants the opportunity to file an amended notice of removal or
other paper alleging the citizenship of each party. See generally 28 U.S.C. § 1653 (“Defective
allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts.”);
Hendrix v. New Amsterdam Cas. Co., 390 F.2d 299, 300–02 (10th Cir. 1968) (permitting
amendment of notice of removal to allege principal place of business of defendant and
citizenship, rather than mere residence, of plaintiff).
IT

IS

THEREFORE

ORDERED,

ADJUDGED,

AND

DECREED

that

Defendants must amend the Notice of Removal or file another paper to properly allege diversity
of citizenship, if such allegations can be made in compliance with the dictates of Rule 11 of the
Federal Rules of Civil Procedure, no later than May 18, 2017.
IT IS FURTHER ORDERED that if such an amended notice is not filed by May 18,
2017, the Court may dismiss this action without prejudice.
IT IS SO ORDERED.
______________________________
STEPHAN M. VIDMAR
United States Magistrate Judge
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