Opinion
Civil Action No. 1:02-CV-046-C.
April 29, 2002
ORDER
On this date the Court considered the Motion of E.O. Apartments, Ltd. for Remand and Brief in Support Thereof filed on March 22, 2002, by E.O. Apartments, Ltd. d/b/a Eastern Oaks I ("Plaintiff"). Legion Insurance Company ("Defendant") filed Defendant's Response to the Plaintiffs Motion to Remand and Brief in Support Thereof on April 10, 2002. On April 17, 2002, Plaintiff filed the Reply of E.O. Apartments, Ltd. to Defendant's Response to Plaintiff's Motion for Remand and Brief in Support Thereof: After considering all the relevant arguments and evidence, this Court GRANTS Plaintiff's Motion for Remand.
I. FACTUAL BACKGROUND
Plaintiff is a limited partnership with its principal place of business in Taylor County, Texas. Defendant is an insurance company duly incorporated in the State of Pennsylvania with its principal place of business in Pennsylvania. Defendant's Notice of Removal was based on diversity jurisdiction.
Although the parties agree that the amount in controversy exceeds $100,000, Plaintiff argues that Defendant's Notice of Removal does not allege Plaintiff's citizenship and, therefore, Defendant has failed to establish the diversity jurisdiction of this Court. Defendant however, asks this Court to grant Defendant's Motion to Enlarge Time so that Defendant might supplement its Response to Plaintiff's Motion for Remand with the names, addresses, and citizenships of Plaintiff's general and limited partners, which information Defendant intends to learn from Plaintiff's answers to Defendant's interrogatories, requests for production, and requests for admissions. Regardless of Defendant's intentions, Plaintiff argues that Defendant's failure to establish diversity of citizenship at the time of removal requires remand of this case.
II. PROCEDURAL BACKGROUND
Plaintiff's Original Petition was filed in the 104th Judicial District Court in and for Taylor County, Texas, on February 7, 2002. Defendant's Original Answer was filed in said state court on February 28, 2002. Defendant's Notice of Removal was filed March 8, 2002, and Plaintiff's Motion for Remand and Brief in Support Thereof was filed March 22, 2002. Defendant's Response to Plaintiff's Motion for Remand was filed April 10, 2002, and Plaintiff's Reply was filed April 17, 2002.
Defendant's Motion to Enlarge Time was filed April 10, 2002, and Plaintiff's Response to Defendant's Motion to Enlarge Time was filed April 17, 2002.
III. DISCUSSION
Defendant removed this action to this Court based on diversity jurisdiction as provided by 28 U.S.C. § 1332 (a)(1). Section 1332(a)(1) provides that
(a) The district courts shall have original jurisdiction of all civil actions where the mater in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between —
(1) citizens of different States.
28 U.S.C. § 1332 (a)(1) (2001).
Where an "out-of-state defendant removes an action from state to federal court, the burden is upon the removing party to plead a basis for federal jurisdiction." B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. 1981). "The burden of proving that complete diversity exists rests upon the party who seeks to invoke the court's diversity jurisdiction." Stafford v. Mobil Oil Corp., 945 F.2d 803, 804 (5th Cir. 1991). The jurisdictional facts that support removal must be judged at the time of the removal. Allen v. R H Oil Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995).
"When jurisdiction depends on citizenship, citizenship should be `distinctly and affirmatively alleged.'" Stafford, 945 F.2d at 805. Failure to adequately allege the basis for diversity jurisdiction mandates dismissal. Id. at 804-05. Facts giving rise to federal jurisdiction must be strictly construed and alleged with particularity. Tech Hills II Assocs. v. Phoenix Home Life Mid. Ins. Co., 5 F.3d 963, 969 (5th Cir. 1993). Any uncertainly regarding jurisdiction is to be resolved in favor of remand. Brown v. Demco, Inc., 792 F.24 478, 482 (5th Cir. 1986).
The citizenship of a limited partnership for diversity purposes depends on the citizenship of all the members, including the limited partners. Carden v. Arkoma Assocs., 494 U.S. 185, 195-96 (1990). "For purposes of federal diversity jurisdiction, the partnership itself is considered a citizen of every state of which a general or a limited partner is a citizen." Id. See also Whalen v. Carter, 954 F.2d 1087, 1095 (5th Cir. 1992) (holding that diversity jurisdiction in any suit "by or against" a limited partnership depends on the citizenship of all its partners) (emphasis in original).
In the instant case, the parties agree that Plaintiff is a limited partnership. This Court finds that in order for Defendant to have distinctly and affirmatively alleged Plaintiff's citizenship at the time of removal, Defendant should have included allegations regarding the specific citizenship of each of Plaintiffs general and limited partners. Because diversity jurisdiction cannot be established by mere inference, Getty Oil Corp. v. Ins. Co. of No. Am., 841 F.2d 1254, 1259 (5th Cii. 1988) (citation omitted), this Court finds that such specific allegations are necessary to allow this Court to determine whether complete diversity of citizenship exists.
In the instant case, Defendant's Notice of Removal contained no such allegations of citizenship of Plaintiff's general and limited partners. Consequently, this Court is unable to determine whether diversity jurisdiction existed at the lime of removal. Therefor; the Court finds that Defendant has failed to meet its burden to establish the necessary jurisdictional facts and concludes that removal was improper. Accordingly, the action should be remanded to the state court from which it was removed.
CONCLUSION
After considering all the relevant arguments and evidence, this Court finds that it is without subject matter jurisdiction and that this action was improperly removed. Accordingly, this Court GRANTS Plaintiff's Motion for Remand and DENIES as moot Defendant's Motion to Enlarge Time. Finally, pursuant to 28 U.S.C. § 1447 (c), this Court REMANDS this case to the 104th Judicial District Court in and for Taylor County, Texas.
All costs of removal shall be taxed against Defendant. A certified copy of this Order shall be mailed by the Clerk of this Court to the District Clerk of Taylor County, Texas.