Langer v. Dollar Tree Distribution, Inc.
| Docket Number | EP-23-CV-00189-DCG |
| Decision Date | 02 August 2023 |
| Parties | ANDREAS LANGER, Plaintiff, v. DOLLAR TREE DISTRIBUTION, INC., DOLLAR TREE STORES, INC., and AWESOME PRODUCTS, INC., a/k/a LA's Totally Awesome Products, Defendants. |
| Court | U.S. District Court — Western District of Texas |
Plaintiff Andreas Langer has moved to remand this case to state court. Mot., ECF No. 6; Reply, ECF No. 12. Defendants Dollar Tree Distribution, Inc.; Dollar Tree Stores, Inc. (collectively “Dollar Tree”); and Awesome Products Inc.[1]oppose the Motion. Dollar Tree Resp., ECF No. 11; Awesome Prods. Resp., ECF No. 9. The Court DENIES Plaintiff's Motion and ORDERS Dollar Tree to AMEND its Removal Notice to cure the jurisdictional defects the Court identifies in this Memorandum Opinion and Order.
On March 29, 2023, Plaintiff sued Dollar Tree and Awesome Products for negligence in the 384th Judicial District Court of El Paso County, Texas. Original Pet., ECF No. 4-2, at 1-7.[2]That same day, Plaintiff asked the El Paso District Clerk's Office to issue a citation-which is Texas's equivalent to a federal court summons[3]-for each of the three Defendants. Citation Request, ECF No. 4-1, at 1. A process server served Dollar Tree through its registered agent on April 6, 2023. Dollar Tree Return Notices, ECF Nos. 4-3, 4-5. That same day, a process server provided copies of Plaintiff's Original Petition and summons to the Texas Secretary of State- acting as Awesome Products's agent for service of process-for the Secretary of State to mail to Awesome Products. See Awesome Prods. Return Notice, ECF No. 4-4.
On May 1, 2023, Dollar Tree filed its answer in state court. Dollar Tree Answer, ECF No. 4-6, at 3-4. At that time, the state court record contained no indication that Awesome Products had received notice of the lawsuit. Id. When Dollar Tree filed an amended answer in state court four days later, the docket still contained no indication that Awesome Products had received notice of the lawsuit. See Dollar Tree Am. Answer, ECF No. 4-8, at 5-6.
On May 8, 2023, invoking federal diversity jurisdiction, Dollar Tree timely removed this case.[4] Removal Notice, ECF No. 1, at 1, 4; see also 28 U.S.C. §§ 1332, 1441, 1446. Awesome Products did not sign-or otherwise provide indication that it agreed to-Dollar Tree's removal.
The Texas Secretary of State's “Service of Process Search” website shows that-also on May 8, 2023-the Texas Secretary of State mailed process to Awesome Products. See Tex. Serv. Process Search Results, Reply Ex. 1, ECF No. 12, at 9; see also USPS Tracking, https://tools.usps.com/go/TrackConfirmActioninput (last visited July 25, 2023) (Tracking No. 71901046470101545555) ( “pre-shipment info sent to USPS” and “acceptance at USPS origin facility” on May 8, 2023). Finally, on July 13, 2023, the Texas Secretary of State issued a certificate on the state court docket notifying the parties that it mailed service of process to Awesome Products on May 8, 2023. Tex. Sec'y State Serv. Certificate, ECF No. 13-1.
On June 7, 2023, Plaintiff moved to remand this case, arguing that Dollar Tree's removal is procedurally defective because Awesome Products did not join in or consent to removal and because Dollar Tree failed to explain why Awesome Products did not do so. Mot. at 1-7.
Subject to various exceptions, a defendant can remove a state court civil action to a federal district court so long as that federal court has original jurisdiction over the action. 28 U.S.C. § 1441(a). There are, however, several other removal prerequisites, not all of which are jurisdictional. See, e.g., id. § 1446; Barnes v. Westinghouse Elec. Corp., 962 F.2d 513, 516 (5th Cir. 1992). For example, the requirement that all defendants join in or consent to removal is non-jurisdictional. Johnson v. Helmerich & Payne, Inc., 892 F.2d 422, 423 (5th Cir. 1990). Nevertheless, because the Court must independently assure itself that it has jurisdiction, e.g., Lamar Co. v. Miss. Transp. Comm'n, 976 F.3d 524, 528 (5th Cir. 2020), it will begin by addressing jurisdictional defects before turning to Plaintiff's argument that Dollar Tree's Removal Notice is procedurally defective.
In a removal case, the removing party-here, Dollar Tree-“bears the burden of showing that federal jurisdiction exists and that removal was proper.” Mumfrey v. CVS Pharmacy, Inc., 719 F.3d 392, 397 (5th Cir. 2013); Getty Oil Corp. v. Ins. Co. of N. Am., 841 F.2d 1254, 1259 (5th Cir. 1988).
Federal jurisdiction is constitutionally and statutorily limited. See, e.g., Zummer v. Sallet, 37 F.4th 996, 1010 (5th Cir. 2022). A federal court “must presume that a suit lies outside [its] limited jurisdiction” unless “the party seeking the federal forum” establishes that the court may exercise subject-matter jurisdiction over the case. E.g., Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001).
One way for a federal court to have subject-matter jurisdiction is for it to have diversity jurisdiction. See, e.g., 28 U.S.C. § 1332(a); Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005). Diversity jurisdiction allows a federal court to hear state-law claims, like those Plaintiff brought in this case, see Original Pet. 1-5, when “the matter in controversy exceeds . . . $75,000” and the parties are completely diverse.[5]See, e.g., 28 U.S.C. § 1332(a); Stiftung v. Plains Mktg., LP, 603 F.3d 295, 297 (5th Cir. 2010). Complete diversity exists when, for example, the controversy “is between . . . citizens of different States”-that is, when no plaintiff is a citizen of the same state as any defendant. See, e.g., 28 U.S.C. § 1332(a)(1); Stiftung, 603 F.3d at 297. For diversity jurisdiction purposes, a corporation is “a citizen of every State . . . by which it has been incorporated and of the State . . . where it has its principal place of business.” 28 U.S.C. § 1332(c)(1); see also Hertz Corp. v. Friend, 559 U.S. 77, 80, 93 (2010).
Plaintiff named three corporate defendants in this case. Original Pet. at 1-2. Two are Dollar Tree entities. Id. In its removal notice, Dollar Tree alleges that both of its corporate defendant entities “are foreign corporations organized and existing under the laws of the Commonwealth of Virginia.” Removal Notice at 4. Dollar Tree also alleges that Awesome Products “is a foreign corporation organized and exist[ing] under the laws of the State of California.” Id.
Dollar Tree failed to adequately allege diversity jurisdiction. “In cases involving corporations, allegations of citizenship must set forth the state of incorporation as well as the principal place of business of each corporation.” Getty Oil, 841 F.2d at 1259 (emphasis added). Dollar Tree alleged nothing about the principal place of business of any of the corporate defendants.[6]See generally Removal Notice. Because Dollar Tree did not allege where the corporate defendants' principal places of business are, the Court is unsure whether it has diversity jurisdiction.
Dollar Tree's failure to adequately allege diversity jurisdiction in its Removal Notice does not, however, mean that the Court must remand the case. On the contrary, the Court should provide Dollar Tree with an opportunity to amend its jurisdictional allegations. E.g., 28 U.S.C. § 1653 (); Doe v. Blair, 819 F.3d 64, 68-69 (4th Cir. 2016) ().[7] Indeed, when a removing defendant fails to properly allege citizenship of some or all the parties, courts routinely provide the removing defendant an opportunity to cure its deficient jurisdictional allegations. See, e.g., D.J. McDuffie, Inc. v. Old Reliable Fire Ins. Co., 608 F.2d 145, 146-47 (5th Cir. 1979) (affirming district court's decision to allow defendant to amend its removal notice to allege citizenship of corporate parties); Lastra v. PHH Mortg. Corp., No. 10cv2573-LAB (BLM), 2011 WL 768135, at *1 (S.D. Cal. Feb. 28, 2011) (). This Court will do the same.
As the Court will explain, remand in this case is currently improper. But before continuing to the merits, the Court must be sure that it has jurisdiction. Dollar Tree must amend its Removal Notice to allege the citizenship of each corporate defendant. See Acosta v. Drury Inns, Inc., 400 F.Supp.2d 916, 919-22 (W.D. Tex. 2005) ().
In his Original Petition, Plaintiff says he “is a resident of El Paso, Texas.” Original Pet. at 1. But residency and citizenship are different concepts, and it's a party's citizenship that matters for diversity jurisdiction purposes. E.g., MidCap Media Fin., LLC v. Pathway Data, Inc., 929 F.3d 310, 313 (5th Cir. 2019). “Citizenship requires not only ‘residence in fact' but also ‘the purpose to make the place of residence one's home.'” Id. (quoting Texas v. Florida, 306 U.S. 398, 424 (1939)). “Therefore, an allegation of residency alone does not satisfy the requirement of an allegation of citizenship.” Id. (quotation omitted). Because Plaintiff only alleges his residence, this Court unsure whether Plaintiff is a citizen of Texas and thus is unsure whether it has diversity jurisdiction.
The Court will require Plaintiff to replead in accordance with the Federal Rules of Civil Procedure. See Standing Order Replead...
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