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], filed by Defendant on
March 20, 2019. 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 to file an amended notice of removal no later than
April 8, 2019, if the necessary
jurisdictional allegations can be made in compliance with the
dictates of Rule 11 of the Federal Rules of Civil Procedure.
March 20, 2019, Defendant filed its Notice of Removal under
28 U.S.C. § 1332. [Doc. 1] at 1. The Notice asserts that
there is complete diversity between Plaintiff and Defendant
and that the amount in controversy exceeds $75, 000.
Id. at 2. In support of its claim of diversity of
citizenship, Defendant alleges that it is a
“resident” of Ohio and that, upon information and
belief, Plaintiff is a “resident” of New Mexico.
Id. Defendant makes no allegation as to its
corporate nature, i.e., whether it is a corporation,
partnership, limited liability company, or some other type of
business entity. Nor does Defendant make any allegation as to
the “citizenship” of either party. See
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. 28 U.S.C. § 1332(a) (2018). 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 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, 781 F.3d at 1234.
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 (stating that 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
the facts set forth in the Notice of Removal [Doc. 1] do not
sufficiently establish the citizenship of Plaintiff
or Defendant. First, the Notice alleges the residency of the
parties but does not mention their citizenship. Relatedly,
Defendant's corporate nature-which is essential to
diversity jurisdiction-is unclear. To adequately allege its
citizenship, Defendant must make its corporate nature clear,
i.e. indicate whether it is a corporation partnership,
limited liability company, or some other type of business
entity. The corporate nature matters because, for example,
citizenship of a corporation is pleaded differently than
citizenship of an LLC. The Court will give Defendant the
opportunity to file an amended notice of removal to properly
allege the citizenship of the parties. Defendant must allege
the citizenship of each and every member of the Plaintiff
LLC. Defendant must also allege its own corporate nature and
allege its state(s) of citizenship accordingly.
IS THEREFORE ORDERED, ADJUDGED, AND DECREED that
Defendant amend the Notice of Removal [Doc. 1] 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 April
IS FURTHER ORDERED that if such an amended notice is
not filed by April 8, 2019, the Court may
dismiss this action without prejudice.