KTAQ of Dallas LLC v. Simons et al, No. 3:2012cv04102 - Document 8 (N.D. Tex. 2012)
Court Description: MEMORANDUM OPINION AND ORDER: Plaintiff shall file an amended complaint by 12:00 p.m., on 10/31/2012, that complies with the stated standard. Failure to file an amended complaint as directed will result in dismissal of this action for lack of subject matter jurisdiction. (Ordered by Judge Sam A Lindsay on 10/18/2012) (skt)
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IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION KTAQ OF DALLAS, LLC, Plaintiff, v. MICHAEL F. SIMONS, et al., Defendants. § § § § § § § § § Civil Action No. 3:12-CV-4102-L MEMORANDUM OPINION AND ORDER Before the court is Plaintiff s Original Complaint, filed October 12, 2012. After a review of the Complaint, the court has questions regarding its jurisdiction. The court cannot ascertain whether it has jurisdiction over this matter because the citizenship of each party is not adequately stated. A federal court has subject matter jurisdiction over civil cases arising under the Constitution, laws, or treaties of the United States, or 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. §§ 1331, 1332. Federal courts are courts of limited jurisdiction and must have statutory or constitutional power to adjudicate a claim. See 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)). [S]ubject-matter jurisdiction cannot be created by waiver or consent. Memorandum Opinion and Order - Page 1 Howery v. Allstate Ins. Co., 243 F.3d 912, 919 (5th Cir. 2001). 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) ( federal court may raise subject matter jurisdiction sua sponte ). Diversity of citizenship exists between the parties only if each plaintiff has a different citizenship from each defendant. Getty Oil Corp. v. Insurance Co. of North America, 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 natural person is considered a citizen of 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). Citizenship and residency 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 Memorandum Opinion and Order - Page 2 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)). A partnership or unincorporated association s citizenship is determined by the citizenship of each of its partners. Carden v. Arkoma Assocs., 494 U.S. 185, 195-96 (1990). 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). 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). Based upon the standard set forth by the court, the citizenship of KTAQ of Dallas, LLC, Michael F. Simons, Simons Asset Management, L.L.C., and Promiseland Television Network, Inc., has not been sufficiently set forth. Accordingly, Plaintiff shall file an amended complaint by 12:00 p.m., on October 31, 2012, that complies with the stated standard. Failure to file an amended complaint as directed will result in dismissal of this action for lack of subject matter jurisdiction. It is so ordered this 17th day of October, 2012. _________________________________ Sam A. Lindsay United States District Judge Memorandum Opinion and Order - Page 3
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