Opinion
NO. 4:01-CV-0582-A
September 7, 2001
ORDER
Came on for consideration the motion of plaintiffs, Murphy Phillips, individually, and as Executor of the Estate of Ford Fullingim and as Trustee of the Ford and Myrtle Fullingim Trust, Foy Wallace Bullington, 0. 0. Thompson, and Montex Energy Technologies, Inc., to remand. The court, having considered the motion, the response of defendants Provident Energy Associates of Montana, L.L.C., ("Provident"), Prism Corporation ("Prism"), and Gary Little ("Little"), the reply, the record, and applicable authorities, finds that the motion should be granted.
The names of "Ford" and "Myrtle" were apparently misspelled (as "Floyd" and "Mertyl") in the Notice of Removal filed July 6, 2001.
On April 10, 2001, plaintiffs filed their original petition in the 43rd Judicial District Court of Parker County, Texas. On April 30, 2001, the state district judge signed an order allowing defendant First National Bank of Weatherford to interplead funds into the registry of the court and dismissing plaintiffs' claims against it with prejudice. The removing defendants claim not to have received a copy of the order until June 6, 2001. On July 6, 2001, Provident, Prism, and Little filed their joint notice of removal.
The burden of establishing federal jurisdiction rests with the removing party. B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. 1981). Pleadings to establish diversity must set forth with specificity the citizenship of the parties. See, e.g., Barclay Square Props. v. Midwest Fed. Sav. Loan Ass'n, 893 F.2d 968, 969 (8th Cir. 1990); McGovern v. American Airlines, Inc., 511 F.2d 653, 654 (5th Cir. 1975). A corporation is deemed to be a citizen of any state in which it is incorporated and in which it has its principle place of business. 28 U.S.C. § 1332 (c)(1); Joiner v. Diamond M Drilling Co., 677 F.2d 1035, 1039 (5th Cir. 1982). The citizenship of an unincorporated association is determined by the citizenship of its members.
Carden v. Arkoma Assocs., 494 U.S. 185, 195-96 (1990); Getty Oil Corp. v. Ins. Co. of N. Am., 841 F.2d 1254, 1258 (5th Cir. 1988). The existence of diversity jurisdiction is determined from the fact of citizenship of the parties named and not from the fact of service. New York Life Ins. Co. v. Deshotel, 142 F.3d 873, 883-84 (5th Cir. 1998). And, a defendant may waive his right to remove by proceeding to defend an action in state court or by otherwise invoking the processes of that court. Brown v. Demco, Inc., 792 F.2d 478, 481-82 (5th Cir. 1986).
Plaintiffs allege that there are numerous problems with the removal of this action. The court agrees. For example, the removing defendants state only that Provident is "a Montana limited liability company." They do not allege a principle place of business and place of incorporation, if Provident is a corporation. According to plaintiffs' first amended original petition, Provident is a joint venture and one of the venturers is a corporation with its principal place of business in Texas. Further, the fact that defendant C. E. Justice may or may not have been served has no bearing on the propriety of the removal. New York Life, 142 F.3d at 883-84. The removing defendants do not dispute that Justice is a citizen of the State of Texas. Although they argue that he is or was in bankruptcy, they offer no proof that he was fraudulently joined.
The order attached as Exhibit A to defendants' response to the motion to remand seems to support plaintiffs' contention. "Prism Corporation ("Prism") and Lone Star International Energy, Inc. ("Lone Star") were members of Provident." Ex. A to defs.' resp. at 3, ¶ 3.
For these and other reasons the court need not discuss,
The court ORDERS that plaintiffs' motion to remand be, and is hereby, granted and that this action be, and is hereby, remanded to the 43rd Judicial District Court of Parker County, Texas, from which it was removed.
The court further ORDERS that, if plaintiffs wish to pursue the issue of costs, including reasonable attorneys' fees, to be awarded pursuant to 28 U.S.C. § 1447 (c), they file, by 4:30 p.m. on September 14, an appropriate motion, supported by affidavit or declaration giving (1) a description of each item of work performed, (2) the date on which each item of work was performed, (3) the identity of the attorney who performed each item of work, (4) the amount of time devoted by each attorney to performance of each item of work, and (5) the hourly rate charged by each attorney performing work, and (6) any other matter plaintiffs wish the court to consider on the issue of whether costs should be awarded and, if so, the amount to be awarded.
The court further ORDERS that by 4:30 p.m. on September 21, 2001, defendants file their response, if any, to such motion.