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Hodge v. Geico General Insurance Co.

United States District Court, S.D. Alabama, Southern Division

December 3, 2014

RACHEL A. HODGE, Plaintiff,
v.
GEICO GENERAL INSURANCE COMPANY, Defendant.

ORDER

KATHERINE P. NELSON, Magistrate Judge.

This action is before the Court sua sponte on review of its subject matter jurisdiction.[1] This case was removed to this Court from the Circuit Court of Baldwin County, Alabama, by the Defendant, GEICO General Insurance Company ("GEICO") pursuant to 28 U.S.C. § 1441(a). GEICO's Notice of Removal (Doc. 1) claims diversity of citizenship under 28 U.S.C. § 1332(a) as the sole basis for the Court's subject matter jurisdiction. See 28 U.S.C. § 1446(a) ("A defendant or defendants desiring to remove any civil action from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal...containing a short and plain statement of the grounds for removal...").

"A party removing a case to federal court based on diversity of citizenship bears the burden of establishing the citizenship of the parties."[2] Rolling Greens MHP, L.P. v. Comcast SCH Holdings L.L.C., 374 F.3d 1020, 1022 (11th Cir. 2004) (per curiam). See also, e.g., Ray v. Bird & Son & Asset Realization Co., Inc., 519 F.2d 1081, 1082 (5th Cir. 1975) ("The burden of pleading diversity of citizenship is upon the party invoking federal jurisdiction..." (citing Mas v. Perry, 489 F.2d 1396 (5th Cir. 1974)).[3]

GEICO alleges that, both at the time the Plaintiff commenced her case in state court and at the time of removal, it was a corporation incorporated under the laws of Maryland with its principal place of business in that state. (Doc. 1 at 4, ¶ 13). Thus, for purposes of diversity, GEICO is deemed a citizen of Maryland. See 28 U.S.C. § 1332(c)(1).[4]

However, GEICO alleges only that Plaintiff Rachel A. Hodge, a natural person, is a "resident" of Alabama. (Doc. 1 at 4, ¶ 12). The Eleventh Circuit has repeatedly stressed that "[c]itizenship, not residence, is the key fact that must be alleged... to establish diversity for a natural person." Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994) (emphasis added). See also Travaglio v. Am. Exp. Co., 735 F.3d 1266, 1269 (11th Cir. 2013) ("As we indicated in remanding this case for jurisdictional findings, the allegations in Travaglio's complaint about her citizenship are fatally defective. Residence alone is not enough."); Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330, 1342 n.12 (11th Cir. 2011) ("Ordinarily, the complaint must allege the citizenship, not residence, of the natural defendants."); Corp. Mgmt. Advisors, Inc. v. Artjen Complexus, Inc., 561 F.3d 1294, 1297 (11th Cir. 2009) ("If a party fails to specifically allege citizenship in their notice of removal, the district court should allow that party to cure the omission..." (quotation marks omitted)); Beavers v. A.O. Smith Elec. Prods. Co., 265 F.Appx. 772, 778 (11th Cir. 2008) (per curiam) ("The plaintiffs' complaint alleges only the residence of the nearly 100 plaintiffs, not their states of citizenship. Because the plaintiffs have the burden to affirmatively allege facts demonstrating the existence of jurisdiction and failed to allege the citizenship of the individual plaintiffs, the district court lacked subject matter jurisdiction on the face of the complaint." (internal citation and quotation omitted)); Crist v. Carnival Corp., 410 F.Appx. 197, 200 (11th Cir. 2010) (per curiam) ("The allegation that Crist is a resident' of Florida is insufficient for diversity jurisdiction purposes because residency is not the equivalent of citizenship.").

"Citizenship is equivalent to domicile' for purposes of diversity jurisdiction. A person's domicile is the place of his true, fixed, and permanent home and principal establishment, and to which he has the intention of returning whenever he is absent therefrom." McCormick v. Aderholt, 293 F.3d 1254, 1257-58 (11th Cir. 2002) (citations, quotations, and footnote omitted). See also Travaglio, 735 F.3d at 1269 ("Citizenship is equivalent to "domicile" for purposes of diversity jurisdiction.' And domicile requires both residence in a state and an intention to remain there indefinitely....'" (quoting McCormick, 293 F.3d at 1257-58 (internal quotation marks omitted)) (internal citation omitted)); Mas, 489 F.2d at 1399 ("For diversity purposes, citizenship means domicile; mere residence in the State is not sufficient.").

"Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts." 28 U.S.C. § 1653. "If a party fails to specifically allege citizenship in their notice of removal, the district court should allow that party to cure the omission, as authorized by § 1653." Corp. Mgmt. Advisors, 561 F.3d at 1297. Additionally, GEICO has not filed a disclosure statement in accordance with S.D. ALA LR 3.4 (www.alsd.circ11.dcn/documents/forms/local-rules.pdf) and Federal Rule of Civil Procedure 7.1 contemporaneously with its notice of removal.

Accordingly, GEICO is hereby ORDERED to file, no later than Wednesday, December 10, 2014, 1) a supplement to its notice of removal that properly alleges the Plaintiff's citizenship, and 2) a disclosure statement in accordance with S.D. ALA LR 3.4 and Federal Rule of Civil Procedure 7.1.

DONE and ORDERED.[5]

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA

REQUEST FOR REASSIGNMENT TO A UNITED STATES DISTRICT JUDGE

The undersigned party hereby REQUESTS the reassignment of this action to a United States District Judge.


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