Friday, November 2, 2018
In a recent decision from Florida, a defendant's efforts to remove a case to federal court were for naught when that defendant failed to accurately describe itself to the court. Winn-Dixie Stores, Inc. v. Primary One, LLC, Case No. 3:18-cv-1168-J-34 MCR, 2018 WL 4771058 (M.D. Fl. Oct. 3, 2018).
Primary One, as a defendant, sought to remove this action to federal court under diversity jurisdiction. It pled, in connection with the removal, that it is “a limited liability company duly organized and existing under the laws of the state of New York with its principal place of business located in New York.” With respect to another plaintiff LLC, BI-LO, Primary alleged its jurisdiction of organization and principal place of business address. In response, the court wrote: “These allegations are wholly insufficient to establish the citizenship of primary or [the other LLC], and as such, the Court is unable to discern whether it has diversity jurisdiction in this case.”
While Primary had recited the proper test, namely that an LLC has the citizenship of each state in which a member is a citizen, it had not included that information in its notice of removal; “Primary nevertheless fails to identify its members and their respective states of citizenship.” As to BI-LO, LLC, the plaintiff LLC, Primary had alleged only that it “has no knowledge of any member of BI-LO being a citizen of the state of New York.” This was rejected by the court on the basis that diversity cannot be established in the negative, but rather an affirmative identification of the relevant citizenships is necessary.
Primary was afforded two weeks to provide the court with the information necessary to determine citizenship and whether diversity jurisdiction exists.