Seybold et al v. BBC AF Management/Development LLC

Filing 25

ORDER. Dft, as the party invoking this court's subject matter jurisdiction based on diversity of citizenship in the six cases covered by this order, is DIRECTED to file, within 14 days of the date of this order, a supplement (a second supplement, where applicable) to the notice of removal, which provides the missing jurisdictional information (as fully set out in this order). Signed by Honorable Stephen P. Friot on 4/28/2021. (llg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
VICTOR and BRITTANY SEYBOLD,
individually, and as parents of L.S., C.S.,
and R.S., minors,

)
)
)
)
Plaintiffs,
)
)
-vs)
Case No. CIV-21-0317-F
)
BBC AF MANAGEMENT/DEVELOPMENT,
)
LLC, a foreign limited liability corporation,
)
)
Defendant.
)
……………………………………………………………………………………….
KENNETH AND LINDSAY CHRISTENSEN,
)
individually, and as parents of S.F., a minor,
)
)
Plaintiffs,
)
)
-vs)
Case No. CIV-21-0323-F
)
BBC AF MANAGEMENT/DEVELOPMENT,
)
LLC, a foreign limited liability corporation,
)
)
Defendant.
)
……………………………………………………………………………………….
DALE and ABIGAILA COURTNEY,
)
individually, and as parents of V.C., a minor,
)
)
Plaintiffs,
)
)
-vs)
Case No. CIV-21-0324-F
)
BBC AF MANAGEMENT/DEVELOPMENT,
)
LLC, a foreign limited liability corporation,
)
)
Defendant.
)
……………………………………………………………………………………….

JENNIFER and GHERJUAN ROBINSON,
individually, and as parents of M.R., a minor,

)
)
)
Plaintiffs,
)
)
-vs)
Case No. CIV-21-0325-F
)
BBC AF MANAGEMENT/DEVELOPMENT,
)
LLC, a foreign limited liability corporation,
)
)
Defendant.
)
……………………………………………………………………………………….
DEREK and JENNIFER ROUSE, individually,
)
and as parents of N.R., W.R. and, J.R., minors,
)
)
Plaintiffs,
)
)
-vs)
Case No. CIV-21-0326-F
)
BBC AF MANAGEMENT/DEVELOPMENT,
)
LLC, a foreign limited liability corporation,
)
)
Defendant.
)
……………………………………………………………………………………….
CAMILA KRAWITZ, individually, and as,
)
mother of C.K., JR., a minor,
)
)
Plaintiff,
)
)
-vs)
Case No. CIV-21-0327-F
)
BBC AF MANAGEMENT/DEVELOPMENT,
)
LLC, a foreign limited liability corporation,
)
)
Defendant.
)
ORDER
In three of the above-styled cases (Seybold, CIV-21-0317; Courtney, CIV-210324; and Robinson, CIV-21-0325), the court has previously required the removing
2

party to provide additional information regarding the citizenship of the parties. In
response, the removing party has filed a supplement to the notice of removal which
states that “Plaintiffs were citizens…in Oklahoma at the time the Petition was filed”
(Seybold and Courtney), or which states that “Plaintiffs were citizens…in Texas at
the time the Petition was filed” (Robinson). The emails attached to the supplements
represent that the plaintiffs in these three cases were domiciled in Oklahoma or
Texas “at the time their lawsuits were filed.”
In a removed action, citizenship is determined at the time the petition is filed
in state court as well as at the time of removal.1 Accordingly, the record remains
deficient with respect to the citizenship of each of the plaintiffs in Seybold, Courtney
and Robinson. These parties’ citizenship at the time the petition was filed in state
court and at the time of removal must be alleged.2
For purposes of the other three cases covered by this order (Christensen, CIV21-0323; Rouse, CIV-21-0326; and Krawitz, CIV-21-0327), defendant, as the
removing party is advised as follows.
The court has a duty to determine its jurisdiction. Tuck v. United Services
Automobile Assoc., 859 F.2d 842, 844 (10th Cir. 1988). Upon review of the notice
of removal, the court finds the diversity of citizenship allegations are deficient in
Christensen, Rouse and Krawitz for the following reasons.

1

Stevens v. Nichols, 130 U.S. 230, 231 (1889); Farm Bureau Mut. Ins. Co. v. Eighmy, 849 F.
Supp. 40, 42 (D. Kan. 1994) (“It is well established that when diversity of citizenship is the basis
for removal jurisdiction, it must exist both at the time the original action is filed in state court and
at the time removal is sought.”)
2
Lest it be thought that these requirements exalt formalities a bit too much, the court will note that
it is not unusual for the Tenth Circuit, after a case has run its course in the district court, to remand
the case because the jurisdictional allegations made at the very outset of the case were deficient –
a turn of events that can and should be avoided so that the parties may litigate on the merits without
having to worry about losing the benefit of a judgment in the final stage of the litigation.

3

X

An Individual (here, each of the plaintiffs).
X

The pleading does not allege the specific3 state in which

an individual is a “citizen” or has “citizenship.” Allegations regarding
residency are not sufficient because, for purposes of 28 U.S.C. §1332,
citizenship and residence are two entirely distinct concepts.4
X

Because these actions were removed to federal court,

citizenship allegations must cover the date on which the petition was
filed in state court as well as the date on which removal occurred, as
stated earlier in this order.
X A Limited Liability Company (LLC) (here, defendant BBC AF
Management/Development, LLC).
X

All of the members of the LLC are not identified.5

X

All information necessary to determine the citizenship of

each of the members of the LLC is not alleged. For example, if a
member is another entity,6 then the type of entity must be clearly

3

See, Simmons v. Rosenberg, 572 F. Supp. 823, 825 (E.D.N.Y. 1983) (merely averring that a party
is a citizen of a state other than the state of New York is “clearly insufficient to establish diversity
jurisdiction….”).
4

Residence alone is not the equivalent of citizenship. State Farm Mut. Auto. Ins. Co. v. Dyer, 19
F.3d 514, 520 (10th Cir. 1994); Walden v. Broce Construction Co., 357 F.2d 242, 245 (10th Cir.
1966). It is domicile, not residence, which is relevant for determining an individual’s citizenship.
Siloam Springs Hotel, L.L.C. v. Century Surety Co., 781 F.3d 1233, 1238 (10th Cir. 2015). For
any number of reasons, an individual can reside in one place but be domiciled in another place; for
adults, domicile is established by physical presence in a place, coupled with an intent to remain
there. Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989).
5

Disclosure notices identify the sole member of the party-LLC as another LLC. But even taking
that information into account, the jurisdictional allegations remain deficient.

6

Regarding determination of citizenship for various types of entities, see generally, 15 James Wm.
Moore, Moore’s Federal Practice, §§ 102.50-102.58 (3d ed. 2020); Wright & Miller, 13 Fed. Prac.
& Proc. Juris. § 3630.1 (3d ed.) (application of the citizenship rule for unincorporated
associations).

4

identified, and all information necessary to determine that entity’s
citizenship must be alleged, down through all layers of membership.7
Order to Cure Deficiencies.
Defendant BBC AF Management/Development LLC, as the party invoking
this court’s subject matter jurisdiction based on diversity of citizenship in the six
cases covered by this order, is DIRECTED to:
X

File, within fourteen days of the date of this order, a supplement (a

second supplement, where applicable) to the notice of removal, which provides the
missing jurisdictional information.
X

If the filer cannot allege the necessary information at this stage, the filer

may file a short notice so stating. In that event, the filer shall bring this issue to the
attention of the court at the status and scheduling conference.
X

Failure to comply with respect to one or more of the actions covered by

this order may result in dismissal without prejudice, or remand, of such action.
IT IS SO ORDERED this 28th day of April, 2021.

21-0317p007.docx

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For example, if one of the members is an LLC, then its members, and their specific states of
citizenship, as well as all underlying information necessary to support those conclusions, must be
alleged, and so on. Illustration: Party A is an LLC. The citizenship of the members of an LLC
are imputed to the LLC. Accordingly, the members of the LLC, and all jurisdictional information
necessary to determine each member’s state or states of citizenship, must be determined and
alleged. The members of Party A are X and Y. X is an individual who is a citizen of Oklahoma.
Y is another LLC (the second LLC). The members of Y are B and C. B is yet another LLC (the
third LLC) and C is a corporation. The members of B are D and E. D is an individual who is a
citizen of Texas. E is a partnership. The partners of E are F and G. F is an individual who is a
citizen of Kansas. G is an individual who is a citizen of Arkansas. Corporation C (the second
member of Y) is incorporated in Delaware and has its principal place of business in Florida. Based
on the above, the states in which members of Party A are citizens are Oklahoma (X’s state of
citizenship); and Texas, Kansas, Arkansas, Delaware and Florida (Y’s states of citizenship). Party
A is therefore deemed a citizen of Oklahoma, Texas, Kansas, Arkansas Delaware and Florida.

5