Hankston v. Kleindienst et al
MEMORANDUM OPINION AND ORDER by Magistrate Judge Stephan M. Vidmar GRANTING Defendant Love's Travel Stops & Country Stores, Inc. leave to amend #1 the Notice of Removal no later than August 24, 2020. (jcm)
Case 2:20-cv-00648-GJF-SMV Document 9 Filed 07/23/20 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
No. 20-cv-0648 GJF/SMV
C.R. ENGLAND, INC.; and
LOVE’S TRAVEL STOPS & COUNTRY STORES, INC.;
MEMORANDUM OPINION AND ORDER GRANTING
LEAVE TO AMEND THE NOTICE OF REMOVAL
THIS MATTER is before the Court sua sponte, following its review of the Notice of
Removal [Doc. 1], filed by Defendant Love’s Travel Stops & Country Stores, Inc. (“Love’s) on
July 2, 2020. The Court has a duty to determine sua sponte whether subject-matter jurisdiction
exists. See Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006); Tuck v. United Servs. Auto. Ass’n,
859 F.2d 842, 844 (10th Cir. 1988). The Court, having considered the Notice of Removal, the
applicable law, and being otherwise fully advised in the premises, concludes that the Notice fails
to allege the necessary facts of citizenship in order to sustain diversity jurisdiction. Therefore,
the Court will order the removing Defendant to file an amended notice of removal no later than
August 24, 2020, if the necessary jurisdictional allegations can be made in compliance with the
dictates of Rule 11 of the Federal Rules of Civil Procedure.
On July 2, 2020, Love’s filed its Notice of Removal under 28 U.S.C. § 1332. [Doc. 1]
at 1–2. The Notice asserts that there diversity exists between Plaintiff and Love’s and that the
Case 2:20-cv-00648-GJF-SMV Document 9 Filed 07/23/20 Page 2 of 3
amount in controversy exceeds $75,000. Id. In support of its claim of diversity of citizenship,
Love’s alleges that Plaintiff is a citizen of Texas and Love’s is a citizen of Oklahoma. See id.
The Notice alleges the citizenship of neither Defendant Kleindienst nor Defendant C.R. England,
Inc. See id. at 1–3.
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).
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. 28 U.S.C. § 1332(a) (2018). 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).
Here, the Notice of Removal does not sufficiently establish diversity of citizenship
because it lacks allegations concerning the citizenship of two Defendants, Kleindienst and C.R.
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Diversity jurisdiction requires that “each plaintiff . . . be diverse from each
defendant.” Ravenswood Inv. Co. v. Avalon Corr. Servs., 651 F.3d 1219, 1223 (10th Cir. 2011);
see § 1332(a). Without knowing the citizenship of two Defendants, the Court cannot determine
whether diversity jurisdiction exists. The Court will give Love’s the opportunity to file an
amended notice of removal to properly allege the citizenship each and every party at the time the
notice was filed, including the citizenship of Defendants Kleindienst and C.R. England, Inc.
Defendant Love’s amend the Notice of Removal 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 August 24, 2020.
IT IS FURTHER ORDERED that if such an amended notice is not filed by August 24,
2020, the Court may remand this action to state court.
IT IS SO ORDERED.
STEPHAN M. VIDMAR
United States Magistrate Judge
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