United States District Court, D. South Carolina, Columbia Division
Jessica L. Vest, Plaintiff.
RSC Lexington, LLC d/b/a Oakleaf Village of Lexington and Royal Senior Care Management LLC, Defendants.
OPINION AND ORDER GRANTING MOTION TO REMAND (ECF NO.
CAMERON MCGOWAN CURRIE Senior United States District Judge.
matter was removed from state court based on the assertion of
diversity jurisdiction. ECF Nos. 1, 9 (notices of removal
filed September 2, 2016). It is now before the court on
Plaintiff's motion to remand. ECF No. 23 (motion to
remand filed Tuesday, October 4, 2016). Plaintiff argues
Defendants have failed to meet their burden of establishing
the existence of subject matter jurisdiction. More
specifically, Plaintiff argues the information provided in
response to the court's inquiry (and Plaintiff's
motion to remand) fails to establish the citizenship of
Defendant RSC Lexington, LLC d/b/a Oakleaf Village of
Lexington (“RSC Lexington”) and, consequently,
fails to support a finding of complete diversity. For reasons
explained below, the motion to remand is granted.
standard of review applicable to motions to remand depends on
whether the defect at issue is merely procedural or raises
concerns as to the existence of subject matter jurisdiction.
Deficiencies in the jurisdictional allegations in a notice of
removal are procedural errors and, consequently, may be
challenged only by motion filed within thirty days of
removal. See Doe v. Blair, 819 F.3d 64 (4th Cir.
2016) (reversing sua sponte remand as based on
procedural error where defendant failed to allege its
principal place of business and court remanded based on this
deficiency without allowing defendant an opportunity to
cure); Ellenburg v. Spartan Motors Chassis, Inc.,
519 F.3d 192, 197-98 (4th Cir. 2008) (reversing sua
sponte remand as based on procedural error where
defendant relied on generic allegation that the amount in
controversy exceeded $75, 000 and court remanded based on
this deficiency without allowing defendant an opportunity to
cure). Further, jurisdictional allegations in a notice of
removal need not “meet a higher pleading standard than
the one imposed on a plaintiff in drafting an initial
complaint.” Ellenburg, 519 F.3d at 200
(holding generic allegation as to amount in controversy, made
on information and belief, did not render notice of removal
of Subject Matter Jurisdiction.
In contrast, concerns as to the absence of subject matter
jurisdiction may be raised at any time, by the court or
parties. As explained in Ellenburg:
In the case where remand is based on a lack of subject matter
jurisdiction, the remand order may be entered at any time,
for jurisdiction goes to the very power of the court to act.
. . . In addition, because the lack of subject matter
jurisdiction may be noticed by the district court sua
sponte or by any party, . . . the court may enter a
remand order sua sponte.
Id. at 196 (noting remand based on a lack of subject
matter jurisdiction falls within the scope of 28 U.S.C.
§ 1447(c) and is not reviewable).
while a court may not remand a matter based on a perceived
insufficiency in the factual allegations in a notice of
removal, at least not sua sponte, it may be prompted
by the nature of those allegations to “inquire sua
sponte whether it has subject matter jurisdiction and
impose on the defendants the burden of demonstrating
jurisdiction.” Id. at 200 (suggesting district
court could make such inquiry or invite a motion to remand);
see also Zoroastrian Ctr. v. Rustam Guiv Found'n of
N.Y., 822 F.3d 739, 748 (4th Cir. 2016) (noting removing
party “bears the burden of proof, by a preponderance of
the evidence, to show the parties' citizenship to be
diverse”). In resolving any concerns as to the
existence of jurisdiction (or properly raised procedural
defects) the court should consider that “[r]emoval
jurisdiction is not a favored construction; [the courts]
construe it strictly in light of the federalism concerns
inherent in that form of federal jurisdiction.” In
re Blackwater Security Consulting, LLC, 460 F.3d 576,
583 (4th Cir. 2006) (also noting “the party seeking
removal bears the burden of demonstrating that removal
jurisdiction is proper.”); Mulcahey v. Columbia
Organic Chemicals Co., Inc. 29 F.3d 148, 151 (4th Cir.
1994) (noting same standards and concluding “[i]f
federal jurisdiction is doubtful, a remand is
for Diversity Purposes.
For purposes of diversity jurisdiction, the citizenship of an
artificial entity other than a corporation is coextensive
with the citizenship of all of its members or partners.
Americold Realty Trust v. Conagra Foods, Inc., ___
U.S. ___, 136 S.Ct. 1012, 1016-17 (2016) (holding real estate
investment trust's citizenship, like that of joint stock
companies, partnerships, and other unincorporated entities,
was coextensive with the citizenship of all of its
members); Carden v. Arkoma Associates, 494
U.S. 185 (1990) (citizenship of limited partnership was
coextensive with all of its general and limited partners);
Zoroastrian Ctr., 822 F.3d at 749 (noting that, for
“unincorporated entities, the Supreme Court [in
Americold] adhered to the ‘oft-repeated rule
that diversity jurisdiction in a suit by or against the
entity depends on the citizenship of all its
members'”); Central W.Va. Energy Co., Inc. v.
Mountain State Carbon, LLC, 636 F.3d 101, 103 (4th Cir.
2011) (“For purposes of diversity jurisdiction, the
citizenship of a limited liability company . . . is
determined by the citizenship of all of its members.”).
state court complaint alleges Plaintiff is a citizen of the
state of South Carolina. It also alleges Defendants, both
limited liability companies (“LLCs”), are
comprised of members who are citizens of Florida or a state
other than South Carolina. Defendants removed, relying on these
allegations and similarly generic assertions that both
Defendants were either citizens of Florida or states other
than South Carolina.
notice of removal, Defendant Royal Senior Care Management,
LLC (“RSCM”) asserted:
[RSCM] is a limited liability company organized and
established under the laws of the State of Florida, whose
members and managers are citizens of Florida. (Compl.
¶ 3.) Plaintiff alleges that Defendant RSC
Lexington, LLC also is a Florida limited liability company
whose members and managers are citizens of Florida or a
State other than South Carolina. (Compl. ¶ 2.)
1 at 3, 4 (emphasis added, footnote omitted). Similarly,
Defendant RSC Lexington asserted in its notice of removal
that it is “a limited liability company comprised of
members who are citizens of the State of
Florida” and “[u]pon information and belief,
Defendant Royal Senior Care Management, LLC is a limited
liability company comprised of members who are citizens of a
state other than South Carolina.” ECF No. 9 at 2. Thus,
each Defendant asserted its own members were citizens solely
of Florida and its co-Defendant was either a citizen of
Florida or a state other than South Carolina.
with its normal practices, the court directed the parties
invoking federal jurisdiction, here Defendants, to provide
additional details as to the factual basis for their
citizenship allegations. ECF No. 4 (“Order to
Supplement”). Specifically, the court directed
Defendants to “file supplemental jurisdictional
statements listing all members of each LLC Defendant and
providing information necessary to determine each
member's citizenship (including, as appropriate, the
identity of upstream members and facts necessary to determine
those members' citizenship).” Id.
Citizenship. RSCM responded with information that
tracked the citizenship of its members back to two
individuals. ECF No. 6. Both of these individuals are
identified, on personal knowledge of a declarant, Edward
Matera, as citizens of Florida. Id. Thus, ...