Cummings et al v. McGovern et al

Filing 41

ORDER AND MEMORANDUM DECISION-this case is REMANDED to the state court from which it was removed and CLOSED. Signed by Judge Clark Waddoups on 9/16/11. (jmr)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

CRAIG CUMMINGS, et al.,
Plaintiffs,

ORDER and MEMORANDUM
DECISION

vs.

ROBERT L. MCGOVERN, et al.,

Case No. 2:09-cv-46 CW

Defendants.

This court “must, sua sponte, satisfy itself of its power to adjudicate in every case and at
every stage of the proceedings.” State Farm Mut. Auto. Ins. Co. v. Narvaez, 149 F.3d 1269,
1270-71 (10th Cir.1998) (internal quotation marks and citation omitted). In this action, removal
jurisdiction was invoked based upon diversity jurisdiction pursuant to 28 U.S.C. § 1332. As the
court reviewed the notice of removal in this matter, however, it has become apparent that the
underlying complaint and the subsequent pleadings do not establish that the requirements of §
1332 have been met.
First, while various parties are limited liability companies, the state citizenship of each
member of each such company is not alleged in the complaint or otherwise established by the
record. Because these facts have not been shown, there is a failure to demonstrate diversity here.
The law is well established that “for entities other than corporations,” the court’s “‘diversity
jurisdiction in a suit by or against [an] entity depends on the citizenship of . . . each of its

members.’” Penteco Corp. Ltd. P’ship-1985A v. Union Gas Sys., Inc., 929 F.2d 1519, 1523
(10th Cir.1991) (quoting Carden v. Arkoma Assoc., 494 U.S. 185, 189 (1990)).
The other impediment to diversity jurisdiction here is that Plaintiffs have named 100
fictitious, or “Doe,” defendants without making any allegations regarding their state citizenship.
Generally, a plaintiff's failure to make allegations about the state citizenship of fictitiously named
defendants destroys diversity jurisdiction and can lead to dismissal or remand. See, e.g.,
Commonwealth Property Advocates, LLC v. Ocwen Loan Servicing, LLC, No. 2:10-CV-86 CW,
2010 U.S. Dist. LEXIS 42228, 2010 WL 1737583 (D. Utah April 29, 2010).
ORDER AND CONCLUSION
For the reasons set forth above, the court finds that it lacks jurisdiction in this matter.
Accordingly, this case is REMANDED to the state court from which it was removed and
CLOSED.
SO ORDERED this 16th day of September, 2011.
BY THE COURT:

_____________________________
Clark Waddoups
United States District Judge

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