Lee v. Alabama CVS Pharmacy, L.L.C., No. 2:2014cv00913 - Document 8 (M.D. Ala. 2014)

Court Description: OPINION AND ORDER: it is the ORDER, JUDGMENT, and DECREE of the court that removing dft Alabama CVS Pharmacy, LLC, has until 11/10/2014, to amend the notice of removal to allege jurisdiction sufficiently, see 28 USC § 1653; otherwise this lawsuit shall be remanded to state court. Signed by Honorable Judge Myron H. Thompson on 10/27/2014. (wcl, )
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IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION HORATIO R. LEE, as Personal Representative of the Estate of Daisy R. Lee a/k/a Daisy Rudolph Lee, deceased, Plaintiff, v. ALABAMA L.L.C., CVS Defendant. ) ) ) ) ) ) ) ) ) ) PHARMACY, ) ) ) ) CIVIL ACTION NO. 2:14cv913-MHT (WO) OPINION AND ORDER The allegations insufficient to jurisdiction under of the invoke 28 U.S.C. notice this §§ citizenship) and 1441 (removal). of removal court's 1332 are removal (diversity of 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). allegations must show that the citizenship The of each plaintiff is different from that of each defendant. See 28 U.S.C. § 1332; see also 2 James Wm. Moore, et al., Moore's Federal Practice § 8.03[5][b] at 8-16 (3d ed. 2006). The notice of removal fails to meet this standard as to the plaintiff. Admittedly, "the legal representative of the estate of a decedent shall be deemed to be a citizen only of the same State as the decedent ...." 28 U.S.C. § 1332(c)(2). However, the notice purports to give the "residence" rather than the "citizenship" of decedent Daisy R. Lee. that a party is a "resident" of a An allegation State is not sufficient to establish that a party is a "citizen" of that State. Delome v. Union Barge Line Co., 444 F.2d 225, 233 (5th Cir.), cert. denied, 404 U.S. 995 (1971). 2 The removal notice is also insufficient because it does not indicate the citizenship of a party that is a limited Pharmacy, liability company : L.L.C. [L]ike defendant a limited Alabama CVS 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 allege the citizenships of all the members of the limited liability company. is another entity, the Id. complaint If the member must reflect the citizenship of that entity based on the nature of that entity. The allegation of citizenship as to Alabama CVS Pharmacy, L.L.C. s sole member, CVS Pharmacy, Inc., a corporation, is not sufficient. For corporate citizenship, the notice must allege both the State of incorporation principal and place where of the business. 3 corporation See has 28 its U.S.C. § 1332(c)(1); American Motorists Ins. Co. v. American Employers' Ins. Co., 600 F.2d 15, 16 and n.1 (5th Cir. 1979) (per curiam). Therefore, the notice must be amended to allege both CVS Pharmacy, Inc. s State of incorporation and where it has its principal place of business. *** It is therefore the ORDER, JUDGMENT, and DECREE of the court that removing defendant Alabama CVS Pharmacy, L.L.C., has until November 10, 2014, 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 27th day of October, 2014. /s/ Myron H. Thompson____ UNITED STATES DISTRICT JUDGE