United States District Court, S.D. Alabama, Southern Division
KATHERINE P. NELSON, UNITED STATES MAGISTRATE JUDGE
action is before the Court sua sponte on review of
its subject matter jurisdiction. Upon consideration, the
undersigned finds that the following defective allegations in
support of subject matter jurisdiction must be remedied.
Notice of Removal
case was removed to this Court by Defendant Hogan
Architectural Wood Products, LLC, which claims that its
correct name is Hogan Architectural Hardwoods, LLC
(hereinafter, “the Hogan LLC”), under 28 U.S.C.
§ 1441(a). In its Notice of Removal (Doc. 1), the Hogan
LLC alleges 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
as here, a case is removed from state court, “[t]he
burden of establishing subject matter jurisdiction falls on
the party invoking removal.” Univ. of S. Alabama v.
Am. Tobacco Co., 168 F.3d 405, 411-12 (11th Cir. 1999).
Accord, e.g., City of Vestavia Hills v. Gen.
Fid. Ins. Co., 676 F.3d 1310, 1313 (11th Cir. 2012)
(“The removing party bears the burden of proof
regarding the existence of federal subject matter
jurisdiction.”). “A defendant may remove an
action to a district court that would have original
jurisdiction if complete diversity between the parties exists
and the amount in controversy exceeds $75, 000.”
City of Vestavia Hills, 676 F.3d at 1313 (citing 28
U.S.C. § 1332). “Diversity jurisdiction requires
complete diversity; every plaintiff must be diverse from
every defendant.” Triggs v. John Crump Toyota,
Inc., 154 F.3d 1284, 1287 (11th Cir. 1998). “A
party removing a case to federal court based on diversity of
citizenship bears the burden of establishing the citizenship
of the parties.” 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)).
Notice of Removal correctly alleges that the Plaintiff, a
corporation, is a citizen of Alabama. See (Doc. 1 at
7, ¶ 21 (“Plaintiff OHC is an Alabama corporation
with its principal place of business in Mobile County,
Alabama; and hence is a citizen of Alabama.”)); 28
U.S.C. § 1332(c)(1). Correctly recognizing that, for
purposes of diversity jurisdiction, “a limited
liability company is a citizen of any state of which a member
of the company is a citizen[, ]” Rolling Greens
MHP, L.P. v. Comcast SCH Holdings L.L.C., 374 F.3d 1020,
1022 (11th Cir. 2004) (per curiam), the Notice of Removal
also identifies the 3 members of the Hogan LLC: Defendant M.
David Hogan, non-party Johnnie F. Hogan, and non-party the
Succession of Paul M. Hogan, deceased. (Doc. 1 at 6, ¶
16). The Notice alleges that M. David and Johnnie Hogan, both
natural persons, are citizens of Louisiana. (See
id., ¶¶ 15, 17).
However, the Notice of Removal only ever alleges that
decedent Paul M. Hogan, also a natural person, was a resident
of Louisiana at the time of his death. See
(id. at 2, 6, ¶¶ 3, 18); 28 U.S.C. §
1332(c)(2) (for purposes of diversity jurisdiction,
“the legal representative of the estate of a decedent
shall be deemed to be a citizen only of the same State as the
decedent…”). “Citizenship, 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). “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). That is, “domicile requires both
residence in a state and ‘an
intention to remain there indefinitely....' ”
Travaglio v. Am. Exp. Co., 735 F.3d 1266, 1269 (11th
Cir. 2013) (quoting McCormick, 293 F.3d at 1258
(internal quotation marks omitted)) (emphasis added). See
also Mas, 489 F.2d at 1399 (“For diversity
purposes, citizenship means domicile; mere residence in the
State is not sufficient.”). Accordingly, the Hogan LLC
must allege Paul M. Hogan's state of citizenship/domicile
at the time of his death to sufficiently allege complete
diversity of citizenship.
allegations of jurisdiction may be amended, upon terms, in
the trial or appellate courts.” 28 U.S.C. § 1653.
“[T]he failure to establish a party's citizenship
at the time of filing the removal notice is a procedural,
rather than jurisdictional, defect.” Corporate
Mgmt. Advisors, Inc. v. Artjen Complexus, Inc., 561 F.3d
1294, 1296 (11th Cir. 2009) (quotation omitted). “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.” Id. at 1297. Upon consideration, the
Hogan LLC is hereby ORDERED to file and
serve, no later than Wednesday, May 8,
2019, an amended or supplemental Notice of
Removal that corrects the above-described deficiency in its
allegations supporting diversity of citizenship under §
1332(a), or that alleges some alternative basis for subject
matter jurisdiction. The failure to comply with this order
may result in remand of this action sua sponte for
lack of subject matter jurisdiction under 28 U.S.C. §
1447(c) (“If at any time before final judgment it
appears that the district court lacks subject matter
jurisdiction, the case shall be remanded.”).
Plaintiff's Amended Complaint
April 12, 2019, following removal, Defendant M. David Hogan
filed pro se an answer to the initial complaint.
(Doc. 2). To date, the Hogan LLC has not filed an answer or
Rule 12 motion in response to the initial complaint. On April
24, 2019, the Plaintiff filed its First Amended Complaint,
which joins Brent Upshaw and Blake Ogilvie as defendants in
this action. (Doc. 14). Generally, such amendment as a matter
of course would have been proper under Federal Rule of Civil
Procedure 15(a)(1)(B). However, “[i]f after removal the
plaintiff seeks to join additional defendants whose joinder
would destroy subject matter jurisdiction, the court may deny
joinder, or permit joinder and remand the action to the State
court.” 28 U.S.C. § 1447(e). A “district
court ha[s] no discretion to add [a nondiverse party] as a
defendant, retain jurisdiction and decide the case on the
merits.” Ingram v. CSX Transp., Inc., 146 F.3d
858, 863 (11th Cir. 1998). Rather, when § 1447(e)
applies, a district court has “only two options: (1)
deny joinder; or (2) permit joinder and remand [the] case to
state court.” Id.
First Amended Complaint only alleges Upshaw and Ogilvie's
state of residence (see Doc. 14 at 2, ¶¶ 4
- 5), which, as explained above, is insufficient to allege a
natural person's citizenship. Because the Plaintiff has
failed to adequately demonstrate that Upshaw and
Ogilvie's citizenships are diverse from the
Plaintiff's, their joinder is denied at this time, and
the First Amended Complaint (Doc. 14) is hereby
STRICKEN. However, the Plaintiff is hereby
granted leave to file and serve, no later than
Wednesday, May 8, 2019, a second
amended complaint that is otherwise identical to the First
Amended Complaint but that sufficiently alleges that Upshaw
and Ogilvie are diverse from the Plaintiff (i.e., that
alleges their states of citizenship/domicile, as opposed to
mere residency). If Upshaw and/or Ogilvie are in fact not
diverse from the Plaintiff, the Plaintiff must seek leave of
the Court to join the non-diverse defendant(s), in accordance
with § 1447(e).
 “It is . . . axiomatic that the
inferior federal courts are courts of limited jurisdiction.
They are ‘empowered to hear only those cases within the
judicial power of the United States as defined by Article III
of the Constitution,' and which have been entrusted to
them by a jurisdictional grant authorized by Congress.”
Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405,
409 (11th Cir. 1999) (quoting Taylor v. Appleton, 30
F.3d 1365, 1367 (11th Cir. 1994)). Accordingly, “it is
well settled that a federal court is obligated to inquire
into subject matter jurisdiction sua sponte whenever
it may be lacking.” Id. at 410. “[A]
court should inquire into whether it has subject matter
jurisdiction at the earliest possible stage in the
proceedings.” Id. See also Arbaugh v. Y&H
Corp., 546 U.S. 500, ...