Lapkin et al v. Avco Corporation et al
Filing
20
MEMORANDUM OPINION AND ORDER granting 7 Motion to Remand to State Court: The Court remands this action to County Court at Law Number Five. The court denies as moot any pending motions. (Ordered by Judge Sam A Lindsay on 5/31/2012) (twd)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ANNE LAPKIN, Individually and as
Personal Representative of the Estate of
AMIR TIROSH, deceased; ALON TIROSH,
Individually; AYAL TIROSH, Individually;
and ARIEL TIROSH, Individually,
Plaintiffs,
v.
AVCO CORPORATION, on behalf of its
LYCOMING ENGINES division, KS
GLEITLAGER USA, INC. f/k/a KS
BEARINGS, INC., KOLBENSCHMIDT
PIERBURG AG, KS KOLBENSCHMIDT
f/k/a KOLBENSCHMIDT AG, and
SUPERIOR AIR PARTS, INC.,
Defendants.
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Civil Action No. 3:11-CV-3424-L
MEMORANDUM OPINION AND ORDER
Before the court is Plaintiffs’ Motion to Remand, filed January 9, 2012. After careful
consideration of the motion, response, reply, record, and applicable law, the court grants Plaintiffs’
Motion to Remand.
I.
Background
Anne Lapkin (“Lapkin”), Individually and as Personal Representative of the Estate of Amir
Tirosh; Alon Tirosh, Individually; Ayal Tirosh, Individually; and Ariel Tirosh, Individually,
(collectively “Plaintiffs”) filed this action in County Court at Law Number Five, Dallas County,
Texas, against AVCO Corporation, on behalf of its Lycoming Engines division; KS Gleitlager USA,
Inc. f/k/a KS Bearings, Inc.; Kolbenschmidt Pierburg AG; KS Kolbenschmidt f/k/a Kolbenschmidt
Memorandum Opinion and Order - Page 1
AG; and Superior Air Parts, Inc. (“Superior”) (collectively, “Defendants”). This action arises from
an aircraft crash on November 22, 2009. Amir Tirosh was piloting the aircraft and was fatally
injured in the crash. Plaintiffs brought claims for wrongful death and survival damages against
Defendants based on strict liability, negligence, and breach of express and implied warranty.
On December 9, 2011, Defendant AVCO Corporation (“AVCO”) removed this action from
County Court at Law Number Five, Dallas County, Texas, to federal court, pursuant to 28 U.S.C.
§ 1332(a)(1), contending that diversity of citizenship exists between the parties and that the amount
in controversy exceeds $75,000, exclusive of interest and costs. Plaintiffs oppose the removal and
filed a motion to remand. They contend that the court does not have subject matter jurisdiction
because there is not complete diversity of citizenship between Plaintiffs and Defendants, as Lapkin,
and Superior are both citizens of Texas. AVCO counters that there is complete diversity because
the representative of the decedent is deemed to be a citizen of the same state as the deceased.
Therefore, according to AVCO, the court may not consider that Lapkin is a Texas citizen but instead
must consider her to be a citizen of New York, the citizenship of decedent Amir Tirosh, and must
find that complete diversity of citizenship exists between the parties.
II.
Subject Matter Jurisdiction
A federal court has subject matter jurisdiction over civil cases “arising under the
Constitution, laws, or treaties of the United States,” or over civil cases in which the amount in
controversy exceeds $75,000, exclusive of interest and costs, and in which diversity of citizenship
exists between the parties. 28 U.S.C. §§ 1331, 1332. Federal courts are courts of limited
jurisdiction and must have statutory or constitutional power to adjudicate a claim. See Home
Builders Ass’n, Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). Absent jurisdiction
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conferred by statute or the Constitution, they lack the power to adjudicate claims and must dismiss
an action if subject matter jurisdiction is lacking. Id.; Stockman v. Federal Election Comm’n, 138
F.3d 144, 151 (5th Cir. 1998) (citing Veldhoen v. United States Coast Guard, 35 F.3d 222, 225 (5th
Cir. 1994)). A federal court has an independent duty, at any level of the proceedings, to determine
whether it properly has subject matter jurisdiction over a case. Ruhgras AG v. Marathon Oil Co.,
526 U.S. 574, 583 (1999) (“[S]ubject-matter delineations must be policed by the courts on their own
initiative even at the highest level.”); McDonal v. Abbott Labs., 408 F.3d 177, 182 n.5 (5th Cir.
2005) (“federal court may raise subject matter jurisdiction sua sponte”).
Diversity of citizenship exists between the parties only if each plaintiff has a different
citizenship from each defendant. Getty Oil Corp. v. Insurance Co. of North America, 841 F.2d 1254,
1258 (5th Cir. 1988). Otherwise stated, 28 U.S.C. § 1332 requires complete diversity of citizenship;
that is, a district court cannot exercise jurisdiction if any plaintiff shares the same citizenship as any
defendant. See Corfield v. Dallas Glen Hills LP, 355 F.3d 853, 857 (5th Cir. 2003) (citing
Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267 (1806)), cert. denied, 541 U.S. 1073 (2004).
III.
Discussion
The parties do not disagree as to the citizenship of any of the parties. Lapkin, the widow of
Amir Tirosh, is a citizen of Texas; Alon Tirosh and Ariel Tirosh are citizens of New York; Ayal
Tirosh is a citizen of Connecticut; Superior is a citizen of Texas; AVCO is a citizen of Delaware;
KS Gleitlager USA, Inc. f/k/a KS Bearings, Inc. is a citizen of Germany incorporated in Delaware;
Kolbenschmidt Pierburg AG is a citizen of Germany; and KS Kolbenschmidt f/k/a Kolbenschmidt
AG is a citizen of Germany. AVCO contends that Lapkin’s Texas citizenship is irrelevant because
of the language in the pertinent statute. For diversity purposes, the statute provides: “[T]he legal
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representative of the estate of a decedent shall be deemed to be a citizen only of the same State as
the decedent.” 28 U.S.C. § 1332(c)(2). The parties agree that Amir Tirosh, the decedent, was a
citizen of New York at the time of his death. The ultimate question that the court has to decide is
whether New York or Texas controls the citizenship of Lapkin. The court disagrees with the
position asserted by AVCO.
By its plain terms, section 1332(c)(2) applies to those cases in which a person is bringing an
action as the legal representative of the estate of the decedent. It is only logical that when one acts
on behalf of the estate, his or her citizenship should be deemed to be the same as that of the state of
the decedent. Such person is standing in the shoes of the decedent, and when a person sues only in
his or her capacity as the representative of the decedent’s estate, the representative is deemed to be
a citizen of the state of the decedent. On the other hand, when a person sues individually and as the
legal representative of the decedent’s estate, the court must examine the citizenship of the individual
and that of the decedent to determine whether diversity exists. See Acridge v. Evangelical Lutheran
Good Samaritan Soc’y, 334 F. 3d 444, 447-48 n.2 (5th Cir. 2003); Rodriguez v. Noble & Pitts, Inc.,
C.A. No. C-06-90, 2006 WL 100651, at *1 n.2 (S.D. Tex. April 13, 2006); Winn v. Panola-Harrison
Elec. Coop., Inc., 966 F. Supp. 481, 483 (E.D. Tex. 1997). Lapkin sued individually and as the
personal representative of Amir Tirosh’s estate. She and Superior are citizens of Texas, and
complete diversity is lacking; therefore, subject matter jurisdiction does not exist.
IV.
Miscellany
A.
Service
The court notes that both Plaintiffs and AVCO discuss service. Whether service has
occurred is quite beside the point to determine diversity. “[T]he existence of diversity is determined
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from the fact of citizenship of the parties named and not from the fact of service.” New York Life
Ins. Co. v. Deshotel, 142 F.3d 873, 883 (5th Cir. 1998) (citations omitted). In other words, the
citizenship of all parties named, served or unserved, must be considered to determine diversity. Id.
B.
Objection to Plaintiffs’ Late Reply
AVCO objects to the late filing of the reply to its response by Plaintiffs and asks the court
not to consider the reply. The reply was four days late under this district’s Local Rules; it should
have been filed on February 10, 2012, but was not filed until February 14, 2012. The court
overrules the objection, as it declines to exalt form over substance. Moreover, the court would have
reached the same conclusion without the reply. Thus, AVCO has not established any legal prejudice
because of the late filing. As the parties are probably aware, the court conducted its independent
research and cited only one case relied on by them.
V.
Conclusion
For the reasons herein stated, complete diversity does not exist between Plaintiffs and
Defendants. Therefore, the court lacks subject matter jurisdiction, grants Plaintiffs’ Motion to
Remand, and remands this action to County Court at Law Number Five, pursuant to 28 U.S.C. §
1441(c). The clerk of court shall effect the remand in accordance with the usual procedure. The
court denies as moot any pending motions.
It is so ordered this 31st day of May, 2012.
_________________________________
Sam A. Lindsay
United States District Judge
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