United States District Court, S.D. Texas, Houston Division
ORDER TO AMEND NOTICE OF REMOVAL TO ALLEGE FACTS
ESTABLISHING SUBJECT MATTER JURISDICTION
LAKE UNITED STATES DISTRICT JUDGE
Lucreasha McKinney, filed this action on March 2, 2018, in
the 240th Judicial District Court of Fort Bend County, Texas,
under cause number 18-DCV-249313, against defendants, Fiserv
CIR d/b/a Fiserv, Inc., and Randstad Professionals US, LLC,
d/b/a Randstad, asserting causes of action for negligence and
seeking damages. On April 11, 2018, a Notice of Removal was
filed by "Defendant Fiserv Solutions, LLC incorrectly
named as Fiserv CIR d/b/a Fiserv Inc.
('Fiserv')." Fiserv states the basis for
removal as follow:
7. The State Court Action constitutes a removable "civil
action" under 28 U.S.C. § 1441(a). This court has
subject matter jurisdiction under 28 U.S.C. § 1331 and
1332 because this is a civil action in which the amount in
controversy exceeds the sum or value of $75, 000, exclusive
of costs and interest, and is between citizens of different
states. . .
A. Complete Diversity
8. Plaintiff is a Texas resident of Harris County, Texas.
See Original Petition at § I.
9. Fiserv is a Wisconsin limited liability company with its
principal place of business in Wisconsin, and has no members
who are residents of Texas.
10. Randstad Professionals is a limited liability company
organized under the laws of the State of Delaware with its
headquarters and principal place of business in the State of
11. Therefore, complete diversity exists between Plaintiff
and all defendants under 28 U.S.C. §
cannot be waived, and it is the duty of a federal court first
to decide, sua sponte if necessary, whether it has
jurisdiction before the merits of the case can be
addressed." Filer v. Donley, 690 F.3d 643, 646
(5th Cir. 2012). See also A.I.M. Controls,
L.L.C. v. Commissioner of Internal Revenue, 67 2 F.3d
390, 392 (5th Cir. 2012) ("Federal courts "must
raise and decide jurisdictional questions that the parties
either overlook or elect not to press.'") (quoting
Henderson ex rel. Henderson v. Shinseki, 131 S.Ct.
1197, 1202 (2011)). Under 28 U.S.C. § 1332 there must be
complete diversity between plaintiffs and defendants.
McLaughlin v. Mississippi Power Co., 376 F.3d 344,
353 (5th Cir. 2004) (citing Strawbridcre v. Curtiss,
7 U.S. (3 Cranch) 267 (1806)). "'The concept of
complete diversity requires that all persons on one side of
the controversy be citizens of different states than all
persons on the other side.'" Id. (quoting
Harrison v. Prather, 404 F.2d 267, 272 (5th Cir.
1968)). Moreover, the court "must presume that a suit
lies outside [its] limited jurisdiction, and the burden of
establishing federal jurisdiction rests on the party seeking
the federal forum." Howery v. Allstate Insurance
Co., 243 F.3d 912, 916 (5th Cir.), cert,
denied, 122 S.Ct. 459 (2001). Thus, Fiserv as the party
asserting federal jurisdiction, bears the burden to
demonstrate complete diversity.
citizenship of limited liability companies is determined by
the citizenship of their members. Harvey v. Grey Wolf
Drilling Co., 542 F.3d 1077, 1080 (5th Cir. 2008). When
members of a limited liability company are themselves
entities or associations, citizenship must be traced through
however many layers of members there are until arriving at
the entity that is not a limited liability company. See
Mullins v. Test America, Inc., 564 F.3d 386, 397-98 (5th
Cir. 2009). The Notice of Removal filed in this action states
that both defendants are limited liability companies but does
not contain any mention of defendants' members or their
respective states of citizenship. Under Harvey these
allegations are not sufficient to establish diversity
citizenship of a natural person is the state where that
person 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). "For purposes of diversity
jurisdiction, the domicile of the parties, as opposed to
their residence, is the key." Preston v. Tenet
Healthsystem Memorial Medical Center, Inc., 485 F.3d
793, 799 (5th Cir. 2007) (quoting Combee v. Shell Oil
Co., 615 F.2d 698, 700 (5th Cir. 1980)). See Parker
v. Overman, 59 U.S. 137, 141, 18 How. 137, 141 (1855)
("'Citizenship' and 'residence' are not
synonymous terms."). The Notice of Removal filed in this
action states that "Plaintiff is a Texas resident of
Harris County, Texas." These allegations are not
sufficient to establish diversity jurisdiction. See
Realty Holding Co. v. Donaldson, 45 S.Ct. 521, 521
(1925) (allegation of residency is inadequate to invoke
28 U.S.C. § 1653 the court may exercise discretion and
allow defendant an opportunity to amend the Notice of Removal
to cure defective allegations regarding jurisdiction.
See 28 U.S.C. § 1653 ("Defective
allegations of jurisdiction may be amended, upon terms, in
the trial or appellate courts."). See also Whitmire
v. Victus Ltd., 212 F.3d 885, 887 (5th Cir. 2000)
(explaining that § 1653 is be "broadly construed to
avoid dismissals of actions on purely 'technical' or
'formal grounds, '" and that a "failure to
specifically allege the citizenship of a party can be
cured" under that Section).
Fiserv is ORDERED to file an amended notice
of removal by May 18, 2018, that identifies plaintiff's
state of citizenship and defendants' members and their
respective states of citizenship. Should Fiserv fail to file
an amended notice of removal that adequately alleges facts
sufficient to establish subject ...