Rivenbark v. Canyon Sudar Partners, LLC et al

Filing 28

ORDER DENYING 12 Motion to Remand, GRANTING 15 Defendant's Motion to Amend/Correct Notice of Removal, and GRANTING 24 Defendant's Motion for an Extension of Time to File a Reply. Defendant is directed to file its amended Notice of Removal within five days of the entry of this order Signed by US District Judge Terrence W. Boyle on 1/22/2015. (Fisher, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:14-CV-189 -BO
EMMA R. BOWEN, Executor of the
ESTATE OF JOHNNIE C. RIVENBARK
alk/a JOHNNIE CLARANCE
RIVENBARK,
Plaintiff,
v.

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ORDER

SSC WALLACE OPERATING COMPANY)
LLC d/b/a BRIAN CENTER HEALTH & )
REHABILITATION/WALLACE,
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Defendant.

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This cause comes before the Court on plaintiffs motion to remand, defendant's motion to
amend/correct notice of removal, and defendant's motion for extension of time to file a reply.
The pending motions have been fully briefed and the matters are ripe for adjudication.

BACKGROUND
Plaintiff filed this action in Duplin County Superior Court alleging that defendants
breached their duty of care to Johnnie Rivenbark, a patient at the Brian Center Health &
Rehabilitation Center, and that Johnnie Rivenbark died as a result. All but one of the original
defendants were dismissed by plaintiff while the action was pending in Duplin County. On
September 5, 2014, the remaining defendant removed the action to this Court based upon its
diversity jurisdiction. 28 U.S.C. § 1332.

DISCUSSION
An action is removable to federal court only if it could have been brought in federal
court. 28 U.S.C. § 1441(a). A civil action may be brought in federal court "where the matter 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). The burden of establishing federal jurisdiction
is on the party seeking removal. Mulcahey v. Columbia Organic Chems. Co., Inc., 29 F.3d 148,
151 (4th Cir. 1994). Removal jurisdiction must be strictly construed and if federal jurisdiction is
doubtful, remand is necessary. Id
Plaintiff contends that the notice of removal filed by defendant was deficient in that it
does not show the citizenship of defendant's members. 1 28 U.S.C. § 1332 provides that the
notice of removal need only contain a short and plain statement of the grounds for removal; a
removing defendant is not held to a higher standard than a plaintiff who files a complaint when
alleging diversity jurisdiction. Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d 192, 199
(4th Cir. 2008). Here, defendant alleged that the amount in controversy exceeds $75,000, that
plaintiff is a resident of North Carolina, and that defendant is a limited liability company with a
chain of ownership of diverse citizenship. Defendant has satisfied § 1332 by making a short and
plain statement of the grounds for removal.
While plaintiff correctly contends that defendant did not identify the top of the ownership
and membership chain sufficient to determine the citizenship of defendant, see Cent. W Va.

Energy Co., Inc. v. Mountain State Carbon, LLC, 636 F.3d 101, 103 (4th Cir. 2011) ("For
purposes of diversity jurisdiction, the citizenship of a limited liability company [] is determined
by the citizenship of all of its members"), defendant has moved to correct its notice of removal
and in opposition to the motion to remand has attached affidavits demonstrating that that top of
the ownership chain of defendant is a Delaware corporation with its principal place of business

1

The Court limits its review of its diversity jurisdiction over this matter to the basis challenged
by plaintiff, and therefore assumes without deciding that the amount in controversy requirement
has been satisfied.
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in Atlanta, Georgia. [DE 20-3; 26-1]; 28 U.S.C. § 1332(c) (corporation is a citizen of any state
where it is incorporated and of the state where its principal place of business is located).
Plaintiff opposes defendant's motion to amend its notice of removal, arguing that it is
beyond the thirty-day period within which to amend and that defendant seeks to substantively
amend its notice. 28 U.S.C. §§ 1446(b); 1653. Indeed, "after thirty days, district courts have
discretion to permit amendments that correct allegations already present in the notice of removal,
[but] Courts have no discretion to permit amendments furnishing new allegations of a
jurisdictional basis." Wood v. Crane Co., 764 F.3d 316, 323 (4th Cir. 2014). Here, defendant
does not seek to allege a new basis for jurisdiction, but rather seeks to make a technical
amendment to its notice of removal by clarifying the "exact grounds underlying diversity
jurisdiction." Jd.

Such an amendment is permitted and the Court in its discretion allows

defendant's request.
CONCLUSION

For the foregoing reasons and for good cause shown, defendant's motion for extension of
time to file a reply [DE 24] and defendant's motion to amend/correct its notice of removal [DE
15] are GRANTED. Because defendant has satisfied its burden to show that this Court has
diversity jurisdiction over the instant action, plaintiffs motion to remand [DE 12] is DENIED.
Defendant is DIRECTED to file its amended notice of removal within five days ofthe date of
entry of this order.
SO ORDERED, this~ day of January, 2015.

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UNITED STATES DISTRICT JUDGE

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