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
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