United States District Court, W.D. Texas, San Antonio Division
DOMIT INTERNATIONAL CONSTRUCTION AND DEVELOPMENT LLC, Plaintiff,
GUILLERMO DELGADO, Defendant.
MEMORANDUM OPINION AND ORDER
PULLIAM, UNITED STATES DISTRICT JUDGE.
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). 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.
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
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.
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.
Delgado's Residency Status
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.
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
Domit's State Citizenship
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.
allegation of residence is insufficient to establish