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Domit International Construction and Development LLC v. Delgado

United States District Court, W.D. Texas, San Antonio Division

December 3, 2019

DOMIT INTERNATIONAL CONSTRUCTION AND DEVELOPMENT LLC, Plaintiff,
v.
GUILLERMO DELGADO, Defendant.

          MEMORANDUM OPINION AND ORDER

          JASON PULLIAM, UNITED STATES DISTRICT JUDGE.

         Before the Court is Defendant's Motion to Dismiss for Lack of Jurisdiction, Motion for a More Definite Statement, & Original Answer Subject Thereto (ECF No. 8) to which Plaintiff responded (ECF No. 10) and Defendant replied (ECF No. 14).[1] Pursuant to Local Rule 7(h), the Court finds this matter appropriate for disposition without a hearing. For the reasons that follow, the Court grants Defendant's Motion to Dismiss and denies Defendant's Motion for a More Definitive Statement as moot.

         I. BACKGROUND

         This action arises out of a dispute regarding a residential home building project in San Antonio, Texas. See generally ECF No. 6. Plaintiff Domit International Construction and Development LLC (“Domit”) alleges it entered into a contract with Defendant Guillermo Delgado (“Delgado”) to construct a home; a dispute regarding performance arose; Domit was terminated; Domit filed a mechanic's lien; and Delgado “has withheld” payment of the lien. Id. at 1-2. Domit pleads federal district court jurisdiction upon allegations that the matter in controversy exceeds $75, 000 and Delgado is a “citizen of a foreign country.” Id. at 1. Delgado challenges this Court's jurisdiction on the basis that he is a lawful permanent resident of the United States domiciled in Texas. ECF No. 8 at 2.

         II. LEGAL STANDARD

         Diversity jurisdiction exists in civil actions where the amount in controversy exceeds $75, 000 and the parties are: (1) citizens of different States; (2) citizens of a State or subjects of a foreign state; (3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and (4) a foreign state, defined in section 1603(a) of this title, as plaintiffs and citizens of a State or of different States. 28 U.S.C. § 1332(a). Section 1332(a)(2) further states: “district courts shall not have original jurisdiction under this subsection of an action between citizens of a State and citizens or subjects of a foreign state who are lawfully admitted for permanent residence in the United States and are domiciled in the same State.” Id. “Thus, it is an individual's immigration status, not his or her contacts with the United States, which determines ‘citizenship' for diversity purposes.” Velazquez v. Broesche, No. SA 06 CA 144 FB, 2006 WL 2329401, at *1 (W.D. Tex. Jun. 13, 2006) (citing Kato v. Cty. of Westchester, 927 F.Supp. 714, 715-17 (S.D.N.Y. 1996)).

         III. DISCUSSION

         Delgado moves the Court to dismiss this action on the basis that the Court lacks jurisdiction under 28 U.S.C. § 1332(a)(2). ECF No. 8 at 2. Domit's First Amended Complaint alleges “Plaintiff is a Texas corporation” and “Defendant is a Mexican Alien Citizen who is not a permanent resident of the United States.” ECF No. 6 ¶¶ 1-2. Delgado contends Domit is a Texas limited liability company and Delgado is a lawful permanent resident (“LPR”) domiciled in Texas. ECF No. 8 ¶ 7. Domit disputes Delgado's LPR status, arguing Delgado's residency status is temporary and has expired. ECF No. 10 ¶ 2.

         A. Delgado's Residency Status

         On November 13, 2019, the Honorable Richard B. Farrer held an initial pretrial conference in this action. See ECF Nos. 16, 18. Counsel for Delgado did not appear. See ECF No. 19. Consequently, Judge Farrer issued a show cause order. Id. In his Order, Judge Farrer noted that he briefly discussed the subject Motion to Dismiss at the pretrial conference, writing: “At issue here is whether Delgado is a lawful permanent resident, as he contends in his motion. Domit alleges that Delgado is a foreign citizen, for jurisdictional purposes. If Delgado is correct, the Court would lack subject matter jurisdiction over the action. If not, the parties would be diverse.” Id. (citing Vargas v. Traylor Bros., Inc., No. CIVA. H-09-2521, 2009 WL 6472945, at *2 (S.D. Tex. Nov. 4, 2009)). Judge Farrer further noted Delgado had produced only a “heavily redacted” copy of his lawful permanent resident card, which did not “aid the jurisdictional inquiry.” Id. Judge Farrer identified several methods by which Delgado could provide an unredacted copy of his lawful permanent resident card to the Court and opposing counsel, and issued a protective order to “aid that endeavor.” Id. Judge Farrer then provided a deadline of December 2, 2019, for Delgado's compliance. Id.

         On November 26, 2019, Delgado filed an unredacted copy of his Permanent Resident Card (also known as a Green Card) and a copy of an I-797 Notice of Action. ECF No. 23-2 at 1-2. Although Delgado's Card lists an expiration date of July, 27, 2019, the I-797 Notice extends Delgado's conditional resident status, authorizing work and travel, for eighteen months. Id. The documents demonstrate Delgado is correct and the Court lacks subject matter jurisdiction in this action.

         B. Domit's State Citizenship

         Delgado further argues that Domit is a limited liability company, not a corporation. See ECF Nos. 1, 6 (in which Domit states “Plaintiff is a Texas corporation.”). Because 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), at the November 13, 2019 hearing, Judge Farrer directed Domit to file an advisory “curing jurisdictional defects.” ECF No. 18 at 1. On November 25, 2019, Domit filed an advisory explaining that Domit International Construction and Development is a limited liability company (“LLC”) consisting of “two members who are Texas residents.” ECF No. 21.

         An allegation of residence is insufficient to establish diversity. ...


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