United States District Court, D. New Mexico
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] and Answer [Doc. 2], filed
by Defendant Franks International, LLC, on September 12,
2018. 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). Having considered the record, the applicable law, and
being otherwise fully advised in the premises, the Court
concludes that Defendant Franks fails to allege sufficient
facts to sustain diversity jurisdiction. There are three
shortcomings. First, allegations of citizenship are
required; allegations of residency are not enough. Second,
there are no allegations as to the citizenship of each and
every member of Defendant Franks International, LLC. Finally,
the allegations must be clear that they relate to the date on
which the original complaint was filed in state court. The
Court will grant Defendant Franks leave to amend its Notice
of Removal and/or Answer no later than October 12,
2018, if the necessary jurisdictional allegations
can be made in compliance with the dictates of Rule 11 of the
Federal Rules of Civil Procedure.
September 12, 2018, Defendant Franks International, LLC,
filed its Notice of Removal of Action Under 28 U.S.C. Section
1441(b). [Doc. 1]. The Notice asserts that there is complete
diversity between Plaintiffs and Defendants and that the
amount in controversy exceeds $75, 000. Id. at 2. In
support of its claim of diversity of citizenship, Defendant
Plaintiff Marisue Tate was, at the time of filing, a resident
of the State of New Mexico, County of Lea. Plaintiff Traci
Long was, at the time of filing, a resident of the State of
Tennessee. Defendant Franks International, LLC was, at the
time of filing, a foreign corporation incorporated under the
laws of the State of Texas and with a principle place of
business of the State of Texas. Defendants Mauro Acuna and
Jorge Torres were, at the time of filing, residents of the
State of Texas. Defendant Mauro Acuna resides in Mission,
Texas. Defendant Jorge Torres resides in Edinburg, Texas. The
citizenship of each party to this action is diverse from the
other party in this action.
[Doc. 1] 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 party asserting federal jurisdiction is required
to prove jurisdictional facts by a “preponderance of
the evidence[.]” McPhail v. Deere & Co.,
529 F.3d 947, 953 (10th Cir. 2008).
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. 28 U.S.C. § 1332(a) (2011). 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 party asserting jurisdiction must plead citizenship
distinctly and affirmatively; allegations of residence are
not enough. Siloam Springs Hotel, L.L.C. v. Century Sur.
Co., 781 F.3d 1233, 1238 (10th Cir. 2015). Domicile, the
equivalent of state citizenship, requires more than mere
residence; domicile exists only when residence is coupled
with an intention to remain in the state indefinitely.
Middleton v. Stephenson, 749 F.3d 1197, 1200 (10th
the citizenship of a limited liability company 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)(1). 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, 781 F.3d at 1234.
relevant time period for proving jurisdictional facts is the
time of the filing of the complaint. Grupo Dataflux v.
Atlas Glob. Grp., L.P., 541 U.S. 567, 570-71 (2004);
Siloam Springs, 781 F.3d at 1239. The
“time-of-filing” rule requires a determination of
“the jurisdictional facts as they are when the
complaint is filed, not as they might be upon final
judgment.” Symes v. Harris, 472 F.3d 754, 758
(10th Cir. 2006). Accordingly, in determining whether a
federal court has diversity jurisdiction, the court must
evaluate whether the parties were diverse at the time the
complaint was filed. Id.
the facts set forth in the Notice of Removal and Answer do
not sufficiently establish the citizenship of Plaintiffs or
Defendants. First, none of the relevant filings (Complaint
[Doc. 1-2] at 1-4, Amended Complaint [Doc. 1-2] at 1-4,
Notice of Removal [Doc. 1], Answer [Doc. 2]) alleges each
party's “citizenship.” The filings refer to
each party's being a “resident” of a state,
but residency is not sufficient. Second, Defendant Franks
fails to allege the citizenship of each and every one of its
members. Third, Defendant Franks must clearly make its
allegations of citizenship as to the time of the filing
of the Complaint.
notice of removal that fails to specify the necessary facts
to establish diversity jurisdiction is defective. Hendrix
v. New Amsterdam Cas. 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 ...