United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
Lindsay United States District Judge.
the court is Plaintiff's Motion to Remand (Doc. 7), filed
July 19, 2017. After considering the motion, response,
evidence, Notice of Removal, pleadings, and applicable law,
the court denies Plaintiff's Motion to
Remand (Doc. 7).
Factual and Procedural Background
Irving Central Place, LLC (“Plaintiff”)
originally brought this action against Defendants Federal
Insurance Company (“FIC”) and Michael Fairley II
“Defendants”), in the 298th Judicial District
Court, Dallas County, Texas, asserting violations of the
Texas Insurance Code and other state law claims pertaining to
Defendants' alleged mishandling of Plaintiff's claim
to recover insurance proceeds for hail and storm damage
sustained by its property. On June 19, 2017, FIC removed the
action to federal court, alleging that diversity of
citizenship exists between the parties and the amount in
controversy, exclusive of interest and costs, exceeds $75,
19, 2017, Plaintiff filed its Motion to Remand, contending
that diversity jurisdiction is lacking because it and Farley
are both citizens of Texas. On August 9, 2017, FIC filed a
response in opposition to the Motion to Remand, asserting
that complete diversity of citizenship exists, and the amount
in controversy is satisfied. In support of its response, FIC
submitted the declarations of James L. Kelly and Fairley and
other evidence. Plaintiff did not file a reply in support of
its Motion to Remand.
Subject Matter Jurisdiction Based on Diversity
federal court has subject matter jurisdiction over civil
cases in which the amount in controversy exceeds $75, 000,
exclusive of interest and costs, and in which diversity of
citizenship exists between the parties. 28 U.S.C. §
1332. Federal courts are courts of limited jurisdiction and
must have statutory or constitutional power to adjudicate a
claim. Kokkonen v. Guardian Life Ins. Co., 511 U.S.
375, 377 (1994) (citations omitted); Home Builders
Ass'n of Miss., Inc. v. City of Madison, 143 F.3d
1006, 1010 (5th Cir. 1998). Absent jurisdiction conferred by
statute or the Constitution, they lack the power to
adjudicate claims and must dismiss an action if subject
matter jurisdiction is lacking. Id.; Stockman v.
Federal Election Comm'n, 138 F.3d 144, 151 (5th Cir.
1998) (citing Veldhoen v. United States Coast Guard,
35 F.3d 222, 225 (5th Cir. 1994)). A federal court must
presume that an action lies outside its limited jurisdiction,
and the burden of establishing that the court has subject
matter jurisdiction to entertain an action rests with the
party asserting jurisdiction. Kokkonen, 511 U.S. at
377 (citations omitted). “[S]ubject-matter jurisdiction
cannot be created by waiver or consent.” Howery v.
Allstate Ins. Co., 243 F.3d 912, 919 (5th Cir. 2001).
courts may also exercise subject matter jurisdiction over a
civil action removed from a state court. Unless Congress
provides otherwise, a “civil action brought in a State
court of which the district courts of the United States have
original jurisdiction, may be removed by the defendant or
defendants, to the district court of the United States for
the district and division embracing the place where such
action is pending.” 28 U.S.C. § 1441(a).
federal court has an independent duty, at any level of the
proceedings, to determine whether it properly has subject
matter jurisdiction over a case. Ruhgras AG v. Marathon
Oil Co., 526 U.S. 574, 583 (1999)
(“[S]ubject-matter delineations must be policed by the
courts on their own initiative even at the highest
level.”); McDonal v. Abbott Labs., 408 F.3d
177, 182 n.5 (5th Cir. 2005) (A “federal court may
raise subject matter jurisdiction sua
sponte.”) (citation omitted).
of citizenship exists between the parties only if each
plaintiff has a different citizenship from each defendant.
Getty Oil Corp. v. Insurance Co. of N. Am., 841 F.2d
1254, 1258 (5th Cir. 1988). Otherwise stated, 28 U.S.C.
§ 1332 requires complete diversity of citizenship; that
is, a district court cannot exercise jurisdiction if any
plaintiff shares the same citizenship as any defendant.
See Corfield v. Dallas Glen Hills LP, 355 F.3d 853,
857 (5th Cir. 2003) (citation omitted). “[T]he basis
upon which jurisdiction depends must be alleged affirmatively
and distinctly and cannot be established argumentatively or
by mere inference.” Getty, 841 F.2d at 1259
(citing Illinois Cent. Gulf R.R. Co. v. Pargas,
Inc., 706 F.2d 633, 636 n.2 (5th Cir. 1983)). Failure to
allege adequately the basis of diversity mandates remand or
dismissal of the action. See Stafford v. Mobil Oil
Corp., 945 F.2d 803, 805 (5th Cir. 1991). A notice of
removal “must allege diversity both at the time of the
filing of the suit in state court and at the time of
removal.” In re Allstate Ins. Co., 8 F.3d 219,
221 (5th Cir. 1993) (quotation marks and citations omitted).
Such failure, however, is a procedural defect and may be
cured by filing an amended notice. Id. n.4.
natural person is considered a citizen of the state where he
or she is domiciled, that is, where the person has a fixed
residence with the intent to remain there indefinitely.
See Freeman v. Northwest Acceptance Corp., 754 F.2d
553, 555-56 (5th Cir. 1985). “‘Citizenship'
and ‘residence' are not synonymous.”
Parker v. Overman, 59 U.S. 137, 141 (1855).
“For diversity purposes, citizenship means domicile;
mere residence in [a] [s]tate is not sufficient.”
Preston v. Tenet Healthsystem Mem'l Med. Ctr.,
Inc., 485 F.3d 793, 799 (5th Cir. 2007) (citation and
quotation marks omitted). “Domicile requires residence
in [a] state and an intent to remain in the state.”
Id. at 798 (citing Mississippi Band of Choctaw
Indians v. Holyfield, 490 U.S. 30, 48 (1989)). The
citizenship of a limited liability company “is
determined by the citizenship of all of its members.”
Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077,
1080 (5th Cir. 2008) (citations omitted). A corporation is a
“citizen of every State . . . by which it has been
incorporated and of the State . . . where it has its
principal place of business[.]” 28 U.S.C. §
1332(c)(1); Hertz Corp. v. Friend, 559 U.S. 77,
diversity purposes, the amount in controversy normally is
determined by the amount sought on the face of the
plaintiff's pleadings, so long as the plaintiff's
claim is made in good faith. 28 U.S.C. § 1446(c)(2);
Dart Cherokee Basin Operating Co., LLC v. Owens, 135
S.Ct. 547, 553 (2014) (citation omitted). “[A]
defendant's notice of removal need include only a
plausible allegation that the amount in controversy exceeds
the jurisdictional threshold.” Dart, 135 S.Ct.
at 554. Further, “[e]vidence establishing the amount is
required by § 1446(c)(2)(B) only when the plaintiff
contests, or the court questions, the defendant's
allegations.” Id. St. Paul Reinsurance Co.
v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998);
De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th
Cir. 1995). Removal is thus proper if it is “facially
apparent” from the complaint that the claim or claims
asserted exceed the jurisdictional amount. Allen v. R
& H Oil & Gas Co., 63 F.3d 1326, 1335 (5th
Cir.), reh'g denied, 70 F.3d 26 (5th Cir. 1995).
If a defendant fails to establish the requisite
jurisdictional amount, the court must remand the case to
state court. If a defendant establishes that the
jurisdictional amount has been met, remand is appropriate
only if a plaintiff can establish “to a legal
certainty” that his recovery will not exceed the
jurisdictional threshold. In re 1994 Exxon Chemical
Fire, 558 F.3d 378, 387-88 (5th Cir. 2009).
doubts as to the propriety of the removal should be construed
strictly in favor of remand. Manguno v. Prudential Prop.
& Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002).
“The burden of establishing subject matter jurisdiction
in federal court rests on the party seeking to invoke
it.” St. Paul Reinsurance, 134 F.3d at 1253
(footnote omitted). Accordingly, if a case is removed to
federal court, the defendant has the burden of establishing
subject matter jurisdiction.