United States District Court, D. New Mexico
FIRST CR CONSTRUCTION, LLC, and RUIDOSO MOUNTAIN BUILDERS, LLC Plaintiffs,
MARGARET TIPPIN and WALTER TIPPIN, Defendants.
MEMORANDUM OPINION AND ORDER
STEPHAN M. VIDMAR, United States Magistrate Judge
MATTER is before the Court sua sponte, following its review
of the Notice of Removal [Doc. 1], filed by Defendant
Margaret Tippin on December 5, 2017. The Court has a duty to
determine whether subject matter jurisdiction exists sua
sponte. See Tuck v. United Servs. Auto. Ass'n,
859 F.2d 842, 844 (10th Cir. 1988). The Court, having
considered the Notice of Removal, the applicable law, and
being otherwise fully advised in the premises, concludes that
the Notice fails to allege the necessary facts of citizenship
in order to sustain diversity jurisdiction. Therefore, the
Court will order Defendant Margaret Tippin to file an amended
notice of removal no later than February 16, 2018, if the
necessary jurisdictional allegations can be made in
compliance with the dictates of Rule 11 of the Federal Rules
of Civil Procedure.
December 5, 2017, Defendant Margaret Tippin filed her Notice
of Removal under 28 U.S.C. § 1332. [Doc. 1] at 1. The
Notice asserts that there is complete diversity between
Plaintiffs and Defendants and that the amount in controversy
exceeds $75, 000. Id. at 1-3. In support of her
claim of diversity of citizenship, Defendant Margaret Tippin
quotes from the Complaint, asserting that Plaintiffs are
“all foreign limited liability companies
‘organized under the laws of the State of Nevada and
registered to do business in the State of New
Mexico.'” Id. (quoting [Doc. 1-1] at 3,
¶ 1). Defendant Margaret Tippin asserts that she and her
husband, co-Defendant, Walter Tippin, are citizens of Texas.
Id. at 2.
federal statute providing for the removal of cases from state
to federal court was intended to restrict rather than enlarge
removal rights. Greenshields v. Warren Petroleum
Corp., 248 F.2d 61, 65 (10th Cir. 1957). Federal courts,
therefore, are to strictly construe the removal statutes and
to resolve all doubts against removal. Fajen v. Found.
Reserve Ins. Co., Inc., 683 F.2d 331, 333 (10th Cir.
1982). The removing party bears the burden of establishing
the requirements for federal jurisdiction. Martin v.
Franklin Capital Corp., 251 F.3d 1284, 1290 (10th Cir.
courts have original jurisdiction of all civil actions where
the amount in controversy exceeds the sum or value of $75,
000, exclusive of interest and costs, and is between citizens
of different States. § 1332(a). When a plaintiff files a
civil action in state court over which the federal district
courts would have original jurisdiction based on diversity of
citizenship, the defendant may remove the action to federal
court, provided that no defendant is a citizen of the State
in which such action is brought. See 28 U.S.C.
§ 1441(a), (b). Jurisdiction under § 1332 requires
diversity of citizenship.
the citizenship of a limited liability companies is different
from determining the citizenship of a corporation under
§ 1332. A corporation is deemed to be a citizen of the
state in which it is incorporated and in which it maintains
its principal place of business. See § 1332(c).
Limited liability companies, however, are treated as
partnerships for citizenship purposes and are, therefore,
citizens of each and every state in which any member is a
citizen. Siloam Springs Hotel, LLC v. Century Sur.
Co., 781 F.3d 1233, 1234 (10th Cir. 2015).
the facts set forth in the Notice of Removal do not
sufficiently establish the citizenship of Plaintiffs because
the citizenship of each and every member is not alleged.
notice of removal that fails to specify the necessary facts
to establish diversity jurisdiction is defective. Hendrix
v. New Amsterdam Casualty Co., 390 F.2d 299, 300 (10th
Cir. 1968). Technical defects, however, may be cured by
amendment of the notice. See Id. at 300-02
(permitting amendment of notice of removal to allege
principal place of business of defendant and citizenship,
rather than mere residence, of plaintiff); Buell v.
Sears, Roebuck & Co., 321 F.2d 468, 471 (10th Cir.
1963) (permitting amendment after appeal to allege
corporation's principal place of business); see
also 28 U.S.C. § 1653 (Defective allegations of
jurisdiction may be amended, upon terms, in the trial or
appellate courts.). As the Tenth Circuit explained in
Hendrix, disallowing amendment in circumstances
comparable to those in this case would be “too grudging
with reference to the controlling statute [28 U.S.C. §
1653], too prone to equate imperfect allegations of
jurisdiction with the total absence of jurisdictional
foundations, and would tend unduly to exalt form over
substance and legal flaw-picking over the orderly disposition
of cases properly committed to federal courts.”
Hendrix, 390 F.2d at 301 (footnotes omitted).
the Court will give Defendant Margaret Tippin the opportunity
to file an amended notice of removal to properly allege the
citizenship of each and every member of the Plaintiff LLCs.
IS THEREFORE ORDERED, ADJUDGED, AND DECREED that
Defendant Margaret Tippin amend the Notice of Removal to
properly allege diversity of citizenship, if such allegations
can be made in compliance with the dictates of Rule 11 of the
Federal Rules of Civil Procedure, no later than
February 16, 2018.
IS FURTHER ORDERED that if such an amended notice is
not filed by February 16, 2018, the Court