Bradley v. Big's Trucking

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE

MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

DESMOND BRADLEY, et al., )

)

Plaintiffs, )

) CIVIL ACTION NO.

v. ) 2:23cv122-MHT

) (WO)

BIG'S TRUCKING, et al., )

)

Defendants. )

ORDER

The allegations of the notice of removal are

insufficient to invoke this court's removal

jurisdiction under 28 U.S.C. §§ 1332 (diversity of

citizenship) and 1441 (removal). To invoke removal

jurisdiction based on diversity, the notice of removal

must distinctly and affirmatively allege each party's

citizenship. See McGovern v. American Airlines, Inc.,

511 F. 2d 653, 654 (5th Cir. 1975) (per curiam).* The

* In Bonner v. City of Prichard, 661 F.2d 1206,

1209 (11th Cir. 1981) (en banc), the Eleventh Circuit

Court of Appeals adopted as binding precedent all of

the decisions of the former Fifth Circuit handed down

prior to the close of business on September 30, 1981.

allegations must show that the citizenship of each

plaintiff is different from that of each defendant.

See 28 U.S.C. § 1332(a).

The removal notice is insufficient because it does

not indicate the citizenship of a party that is a

‘limited liability company’: Outlaw Express, LLC.

“[L]ike a limited partnership, 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). The notice must therefore “list the

citizenships of all the members of the limited

liability company.” Id. (And if the entity consists

of several entities, the complaint must reflect the

citizenship, or citizenships, of each and every entity

based on the nature of that entity.)

In the removal notice, the removing defendant

contends that the court should not consider the

citizenship of defendant Outlaw Express, LLC for any

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purpose because it has not been properly served. The

court disagrees. “[T]he law is clear that the

citizenship of all named defendants, whether served

with process or not, must be considered in determining

whether complete diversity exists, thereby providing a

jurisdictional basis for removal under 28 U.S.C.

§ 1441(a).” Rodgers v. Tyson Foods, Inc., No.

1:20-CV-4127-MLB, 2021 WL 2603710, at *4 (N.D. Ga. Apr.

27, 2021) (Brown, J.); Stegeman v. Wachovia Bank,

National Ass'n, No. 1:06-CV-0247, 2006 WL 870420, at *2

(N.D. Ga. Apr. 4, 2006) (Duffey, J.) (quoting Ott v.

Consolidated Freightways Corp. of Del., 213 F. Supp. 2d

662, 664 (S.D. Miss. 2002) (Lee, J.)). “[R]emoval

based on diversity of citizenship is proper only if

both of the following requirements are met: first, that

there is complete diversity of citizenship between all

plaintiffs and all defendants and, second, that none of

the defendants who has been properly joined and served

is a citizen of the state in which the action is

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brought.” Burke v. Humana Ins. Co., 932 F. Supp. 274,

275 (M.D. Ala. 1996) (Thompson, J.). See also 14C Fed.

Prac. & Proc. Juris. § 3723 (Rev. 4th ed.) (“A party

whose presence in the action would destroy diversity

must be dropped formally, as a matter of record, to

permit removal, however. It is insufficient, for

example, that service of process simply has not been

made on a non-diverse party;... the case may not be

removed until that party actually has been dismissed

from the case.” (footnotes omitted)).

***

It is therefore the ORDER, JUDGMENT, and DECREE of

the court that the removing defendant has until April

6, 2023, to amend the notice of removal to allege

jurisdiction sufficiently, see 28 U.S.C. § 1653;

otherwise this lawsuit shall be remanded to state

court.

DONE, this the 23rd day of March, 2023.

/s/ Myron H. Thompson

UNITED STATES DISTRICT JUDGE

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