Opinion
CIVIL ACTION NUMBER 15-403-SDD-SCR
07-28-2015
SHIRLEY ANN PERRY v. RPM PIZZA, LLC, ET AL
NOTICE
Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the U. S. District Court.
In accordance with 28 U.S.C. §636(b)(1), you have 14 days after being served with the attached report to file written objections to the proposed findings of fact, conclusions of law, and recommendations set forth therein. Failure to file written objections to the proposed findings, conclusions and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.
ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
Baton Rouge, Louisiana, July 28, 2015.
/s/_________
STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE
MAGISTRATE JUDGE'S REPORT
Before the court is a Motion to Dismiss and Request for Return filed by plaintiff Shirley Ann Perry, which shall be treated as a motion to remand. Record document number 4. The motion is opposed.
Although captioned as a Motion to Dismiss and Request for Return, review of the motion demonstrates that the plaintiff is seeking a remand under 28 U.S.C. § 1447.
Record document number 5.
For the reasons which follow, the plaintiff's motion should be denied.
Background
Plaintiff filed a Petition for Damages in state court against defendant RPM Pizza, LLC to recover damages allegedly resulting from a automobile accident with one of the defendant's delivery drivers. Defendant removed the case to this court asserting subject matter jurisdiction under 28 U.S.C. § 1332, specifically alleging diversity of citizenship between it and the plaintiff. Defendant alleged that the plaintiff is a citizen of Louisiana and it is a Mississippi limited liability company whose members, Richard Mueller, Glenn Mueller and William Mendenhall, are citizens of Mississippi. Defendant also alleged that the requisite amount in controversy was satisfied by the allegations in the petition.
Record document number 1, Notice of Removal, ¶ 7. Defendant alleged that the plaintiff is a citizen of Louisiana and defendant RPM Pizza, LLC is a Mississippi limited liability company whose members, Richard Mueller, Glenn Mueller and William Mendenhall, are citizens of Mississippi. For the purpose of removal, the citizenship of fictitious defendant ABC Insurance Company is ignored. 28 U.S.C. § 1441(b).
Record document number 1, ¶ 10. --------
Plaintiffs moved to remand, arguing that defendant RPM Pizza is citizen of Louisiana and its Louisiana citizenship defeats diversity jurisdiction. Plaintiff also sought recovery of fees and costs associated with filing her motion.
Applicable Law
For purposes of diversity, the Fifth Circuit has held that the citizenship of a limited liability company is determined by considering the citizenship of all its members. Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1080 (5th Cir.2008); see Carden v. Arkoma Associates, 494 U.S. 185, 110 S.Ct. 1015, 1021 (1990); see also, Barber Bro. Contracting Co., LLC v. Hanover Ins. Co., 2013 WL 6230335, at *1 (M.D.La. Dec. 2, 2013). Thus, to properly allege the citizenship of a limited liability company, the party asserting jurisdiction must identify each of the entity's members and the citizenship of each member in accordance with the requirements of § 1332 (a) and (c).
When jurisdiction is based on diversity of citizenship, the action is not removable "if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought." 28 U.S.C. § 1441(b).
Analysis
Based on a review of the allegations in the petition and the evidence in light of the applicable law, the defendant has established that it is a citizen of Mississippi. Plaintiff's analysis of the defendant's citizenship - relying on the nature of its business, its activities, the potential impact on the local community, and because it has registered a principle business establishment in Louisiana located in Baton Rouge, Louisiana - is unsupported under the controlling Fifth Circuit standard.
Because there is complete diversity of citizenship between the plaintiff and defendant RPM Pizza, LLC, and the defendant is not a citizen of Louisiana, the court has subject matter jurisdiction.
RECOMMENDATION
It is the recommendation of the magistrate judge that the Motion to Dismiss and Request for Return filed by plaintiff Shirley Ann Perry be treated as a motion to remand and be denied.
Baton Rouge, Louisiana, July 28, 2015.
/s/_________
STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE