McKinney v. Fiserve Solutions LLC et al

Filing 7

ORDER to Amend Notice of Removal to Allege Facts Establishing Subject Matter Jurisdiction. Amended Notice of Removal due by 5/18/2018.(Signed by Judge Sim Lake) Parties notified.(gclair, 4)

United States District Court
Southern District of Texas

ENTERED
April 25, 2018

IN THE UN ITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

David J. Bradley, Clerk

LUCREASHA MCKINNEY ,

Plaintiff,

CIVIL ACTION NO . H-18-1148

FISERV CIR D/B/A FISERV, INC.,
AND RANDSTA D PROFESSIONALS US,

LLC D/B/A RANDSTAD,
Defendants.
ORDER TO AMEND NOTICE OF REMOVAL TO ALLEGE
FA CTS ESTABLISHING SUBJECT MATTER JURISDICTION

Plaintiff, Lucreasha McKinney, filed this action on March 2,

2018, in the 240th Judicial District Court of Fort Bend County,
Texas, under cause number 18-DCV-249313, against defendants, Fiserv

CIR d/b/a Fiserv,

and Randstad Professionals US, LLC, d/b/a

Randstad, asserting causes

damagesx

action

On April 11, 2018,

uDefendant Fiserv Solutions,

negligence and seeking

Notice of Removal was filed by
incorrectly named as Fiserv

d/b/a Fiserv Inc. ('Fiserv').'2
'

Fiserv states the basis for

removal as follow :
7.

The

State

Court A ction

constitutes

a

rem ovable

ncivil action' under 28 U.
'
S.C. 5 1441(
a). This court has

subject matter jurisdiction under 28 U.S. . 5 1331 and
C
1332 because this is a civil action in which the amount

in controversy exceeds the sum or value of $75,000,
l
plaintiff's Original Petition , Docket Entry No . 1-1.
z
Notice of Removal, Docket Entry No .

p . 1.

exclusive of costs and interest, and is between citizens
of different states .
A.

Complete Diversity

8.
Plaintiff is a Texas resident
Texas . See Original Petition at 5 1.

Harris County,

9.
Fiserv is a Wisconsin limited liability company with
its principal place of business in Wisconsin , and has no
members who are residents of Texas .

1O. Randstad Professionals is a limited liability
company organized under the laws of the State of Delaware
with its headquarters and principal place of business in
the State of Georgia .
11. Therefore, complete diversity exists between
Plaintiff and al1 defendants under 28 U.S.C. 5 1332 ( 3
a).

nJurisdiction cannot be waived, and

the duty

federal court first to decide, sua sronte if necessary, whether

has jurisdiction before the merits of the case can be addressed.'
'
Filer v. Donlev, 690 F.3d 643, 646 (
5th

2012).

See also

A .I.M . Controls, L .L .C . v . Commissioner of Internal Revenue ,

F.3d 390, 392 (
5th Cir. 2012) (
nFederal courts A
must raise and

decide jurisdictional questions that the parties either overlook or
elect

press.r') (
' quoting Henderson ex relv Henderson v.

Shinseki,

1197, 1202 (
2011))

Under 28

1332

there must be complete diversity between plaintiffs and defendants .

McLauahlin v. Mississippi Power Co.r 376 F.3d 344, 353 (
5th Cir.
2004)

(
citing Strawbridce v. Curtiss,

(
1806)).

nA
The concept

U.S.

Cranch)

complete diversity requires that all

persons on one side of the controversy be citizens of different

3 . at 2-3 %%
Id
2

states than a11 persons on the other side.'' Id. (
'
quoting Harrison

v. Prather, 404 F.
2d 267, 272 (
5th Cir. 1968)).

Moreover, the

court Amust presume that
'

E
its) limited

suit lies outside

jurisdiction, and the burden of establishing federal jurisdiction
rests on the party seeking the federal forum .' Howerv v . Allstate
'

Insurance Co .,

F.3d 912, 916 (
5th Cir.), cert . denied,

(
2001).

Thus, Fiserv as the party asserting federal

jurisdiction, bears the burden to demonstrate complete diversity.
The citizenship

lim ited liability companies

determined

by the citizenship of their members . Harvev v . Grev Wolf Drillin?

Cow

F.3d 1077,

Cir. 2008).

When members

limited liability company are themselves entities or associations,
citizenship must be traced through however many layers of members
there are until arriving at the entity that

liability company . See Mullin s v . TestAmerica , Inc w
-

not a limited
564 F .3d 386,

397-98 (
5th Cir. 2009). The Notice of Removal filed in this action
states that b0th defendants are lim ited liability companies but
does not contain any mention

defendants' members or their

respective states of citizenship .

Under Harvev these allegations

are not sufficient to establish diversity jurisdiction.
The citizenship of
person

natural person

dom iciled, that

residence with the intent

the state where that

where the person has a
remain there indefinitely .

Freeman v. Northwest Acceptance Corpw

F.2d

fixed
See

555-56 (
5th

Cir. 1985). 'For purposes of diversity jurisdiction, the domicile
'
of the parties, as opposed

their residence,

the key .'
'

Preston v . Tenet Healthsvstem Memorial Medical Center, Inc w

F.3d 793, 799 (
5th Cir. 2007) (
quoting Combee v. Shell Oil Co.r 615
(
5th Cir. 1980)).

137, 141, 18 How.

See Parker v. Overman,

141 (
1855) ( citizenship' and %
uA
residence'

are not synonymous terms.'
'). The Notice of Removal filed in this
action states that nPlaintiff is a Texas resident of Harris County,
%' XRS H4
2

These

allegations

are

sufficient

estab lish

diversity jurisdiction. See Realtv Holdina Co. v. Donaldson, 45
S.

(
1925) (
allegation of residency

inadequate

invoke diversity jurisdiction).
Under 28 U .S .C .

the court m ay exercise discretion and

allow defendant an opportunity

amend the Notice of Removal

cure defective allegations regarding jurisdiction. See 28
5 1653 (
nDefective allegations of jurisdiction may be amended, upon
terms, in the trial or appellate courts.').
'

Victus Ltdw
5 1653

F.3d 885,

be nbroadly construed

purely 'technical'

(
5th

See also Whitmire v.

2000) (
explaining that

avoid dism issals of actions on

Aformal grounds ,'' and that
'

'
'failure to

specifically allege the citizenship of a party can be cured' under
'

that Section).

4
ud

Accordingly , Fiserv
removal

May

ORDERED to file an amended notice

2018, that identifies plaintiff's state

citizenship and defendants' members and their respective states of
citizenship .

Should Fiserv fail

file an am ended notice

removal that adequately alleges facts sufficient

establish

subject matter jurisdiction, this action will be remanded to state
court for lack of jurisdiction .
SIRHRD at Houston, Texas, on this

day of April, 2018 .

<

SIM LAKE
UNITED STATES DISTRICT JUDGE