United States District Court, M.D. Florida, Orlando Division
B. SMITH UNITED STATES MAGISTRATE JUDGE.
the Court are Plaintiff's Motion to Remand (Doc. 8) and
Defendant's memorandum in opposition (Doc. 14). Plaintiff
filed this action for damages arising from the alleged breach
of an insurance contract, in state court (Doc. 1-1).
Defendant removed the case to this Court based on the alleged
existence of diversity jurisdiction (Doc. 1). Because I found
the Notice of Removal inadequate to establish jurisdiction, I
ordered Defendant to show cause why the case should not be
remanded (Doc. 3). Defendant filed a response, with exhibits
(Doc. 6), and the instant motion and response followed (Docs.
8 and 14). Now, the motion to remand is
DENIED; however, Defendant is
DIRECTED to make a further showing.
to federal court is governed by 28 U.S.C. § 1441(a),
which provides in part that “[e]xcept as otherwise
expressly provided by Act of Congress, any civil action
brought in a State court of which the district courts of the
United States have original jurisdiction may be removed by
the defendant or the defendants to the district court of the
United States for the district and division embracing the
place where such action is pending.” Removal statutes
are strictly construed against removal. Shamrock Oil
& Gas Corp. v. Sheets, 313 U.S. 100, 108,
61 S.Ct. 868, 85 L.Ed. 1214 (1941); Burns v. Windsor Ins.
Co., 31 F.3d 1092, 1095 (11th Cir. 1994)
(“[R]emoval statutes are construed narrowly; when the
parties dispute jurisdiction, uncertainties are resolved in
favor of remand.”). See also Univ. of S. Ala. v.
Am. Tobacco Co., 168 F.3d 405, 411 (11th Cir. 1999)
(“[A]ll doubts about jurisdiction should be resolved in
favor of remand to state court.”).
district court has original jurisdiction over cases in which
the parties are of diverse citizenship and “the matter
in controversy exceeds the sum or value of $75, 000,
exclusive of interest and costs.” 28 U.S.C. §
1332(a). Federal jurisdiction pursuant to 28 U.S.C. §
1332 exists only when there is complete diversity between the
plaintiffs and the defendants and the amount in controversy
requirement is met. See Owen Equip. and Recreation Co. v.
Kroger, 437 U.S. 365, 98 S.Ct. 2396, 57 L.Ed.2d 274
party invoking federal jurisdiction the burden is on
Defendant to establish diversity jurisdiction as of the date
of removal. Pretka v. Kolter City Plaza II, Inc.,
608 F.3d 744, 751 (11th Cir.2010). Defendant's burden is
to prove that federal jurisdiction exists by a preponderance
of the evidence through the presentation of facts
establishing its right to remove. Williams v. Best Buy
Company, Inc., 269 F.3d 1316, 1319 (11th Cir. 2001).
When the defendant fails to meet its burden the case must be
remanded. Williams, 269 F.3d at 1321.
diversity purposes, a corporation is a citizen of (1) its
state of incorporation; and (2) the state where it has its
principal place of business. 28 U.S.C. § 1332(c)(1).
Although a corporation may conduct business in multiple
places, the Supreme Court has determined that the
"principal place of business" for a corporation is
its nerve center: "the place where a corporation's
officers direct, control, and coordinate the
corporation's activities." Hertz Corp. v.
Friend, 559 U.S. 77, 130 S.Ct. 1181, 1192- 93, 175
L.Ed.2d 1029 (2010) (establishing "nerve center"
test as uniform approach for determining corporate
citizenship). 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).
complaint alleges that it is a Florida limited liability
company which conducts business in Brevard County, Florida
(Doc. 1-1, ¶ 3). In its removal notice, Defendant cited
this averment and a Florida Division of Corporations report
to argue that Plaintiff is, therefore, a citizen of the state
of Florida and, as Defendant Wilshire is incorporated
pursuant to the laws of the state of North Carolina with its
principal place of business in North Carolina, diversity is
present (Doc. 1, pp.2 -3). Because this showing did not
establish the citizenship of each member of the LLC, as
required, a show cause order was issued.
now states that “Rising Star Roofing's sole member,
Christopher D. Soverns, has a registered address of 250 Diane
Drive, South Windsor, Connecticut 06074 making him a citizen
of the State of Connecticut for diversity purposes.”
(Doc. 6 at 2). Plaintiff argues that this is insufficient
because the plaintiff in the current action is Rising Star
Roofing, LLC and Defendant attached corporate records for
Rising Star Restoration, LLC, a different entity (Doc. 8, pp.
1-2). This contention is without merit. As Defendant
correctly notes, the document filed on October 30, 2017 with
Florida's Secretary of State, identifies Christopher
Soverns as a member of Rising Star Restoration LLC, but Mr.
Soverns amended the Articles of Organization on November 14,
2017 for the sole purpose of changing the name of the entity
from Rising Star Restoration, LLC to Rising Star Roofing, LLC
(Doc. 14, pp. 6-10). Plaintiff acknowledges: “The
correct entity, Rising Star Roofing, LLC has a member,
Christopher Soverns, and a Manager/ owner, Marcus Keilch, as
shown in the Division of Corporations.” (Doc. 8 at 2).
Because the motion to remand is based upon an incorrect
premise, it is DENIED. This does not end the
Defendant provided information about the correct
entity, it still has not provided sufficient
information regarding the citizenship of the
member(s) of that entity. Defendant argues that “Mr.
Soverns is a resident of Connecticut for
purposes of assessing diversity jurisdiction.” (Doc. 14
at 1, emphasis added). To the extent Mr. Keilch is a member
of the LLC, Defendant argues that “Mr. Keilch's
registered address is 27658 Imperial Shores Boulevard, Bonita
Springs, Florida, making him a resident of
the State of Florida for diversity purposes” (Doc. 6,
n. 1, emphasis added). Residency is not the same thing as
citizenship. See Taylor v. Appleton, 30 F.3d 1365,
1367 (11th Cir. 1994) (“Citizenship, not residence, is
the key fact that must be alleged in the complaint to
establish diversity for a natural person.”). The
citizenship of an individual is determined by domicile, which
is established by residence plus an intent to remain.
Miss. Band of Choctaw Indians v. Holyfield, 490 U.S.
30, 48 (1989); see also McCormick v. Aderholt, 293
F.3d 1254, 1257-58 (11th Cir. 2002) (domicile requires both
residence in a state and “an intention to remain there
indefinitely....” Id. at 1258) (internal
quotation marks omitted). The showing here is still
inadequate to establish the citizenship of the Plaintiff.
also has the burden to establish “the matter in
controversy exceeds the sum or value of $75, 000, exclusive
of interest and costs.” 28 U.S.C. § 1332(a).
Plaintiff's complaint does not seek a specific amount of
damages. Defendant contends that the repair estimate attached
to the complaint in the amount of $100, 954.72 is sufficient
to establish that the amount in controversy requirement is
met. The Court does not agree. The complaint alleges that
Plaintiff provided Defendant “with an itemized
description of the services required to return the Property
to a "pre-loss" condition, as required by the
Policy, but Defendant failed to pay the total
amount owed for these services.” (Doc. 1-1,
¶ 17) (emphasis added). Plaintiff avers: “By
failing to make complete payment to
Plaintiff for the reasonable services rendered or to be
rendered in connection with the Claim, Defendant breached the
Policy.” (Id., ¶22). Plaintiff does not
allege that Defendant failed to make any payment or
that it denied the claim; Plaintiff alleged that Defendant
failed to make “total” and “complete”
payment. Given this language, it appears that some payment,
in some indeterminate amount, may have been made, but a
balance of unknown amount is outstanding. The amount in
controversy is therefore not necessarily the entire amount of
the description of services; it is the amount of the claim
minus any deductible under the Policy and minus any payments
already made or agreed-to. Defendant must show the deductible
and the amount of all payments already made and credited
against the claim. Consequently, Defendant has not
established by a preponderance of the evidence that the
amount in controversy exceeds $75, 000.
shall have one final opportunity to show, by
July 15, 2019, why this case should not be remanded for lack
of subject matter jurisdiction. Defendant shall clarify the
citizenship of all members of Plaintiff and shall provide
information sufficient to evaluate the amount in controversy.
Failure to respond to this Order within the time required or
failure to establish that diversity jurisdiction exists may
result in remand, without further notice.