Mallory & Evans Contractors & Engineers, LLC v. Tuskegee Univ.

• Citation: 663 F.3d 1304,274 Ed. Law Rep. 401,23 Fla. L. Weekly Fed. C 614
• Decision Date: 05 December 2011
• Docket Number: No. 11–10940.,11–10940.
• Parties: MALLORY & EVANS CONTRACTORS & ENGINEERS, LLC, Plaintiff–Appellant, v. TUSKEGEE UNIVERSITY, Defendant–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

23 Fla. L. Weekly Fed. C 614

274 Ed. Law Rep. 401

663 F.3d 1304

MALLORY & EVANS CONTRACTORS & ENGINEERS, LLC, Plaintiff–Appellant,

v.TUSKEGEE UNIVERSITY, Defendant–Appellee.

No. 11–10940.

United States Court of Appeals, Eleventh Circuit.

Dec. 5, 2011.

Dana Brent Miles, Lauren Clipp Giles, Miles, Patterson, Hansford, Tallant LLC, Cumming, GA, Robert T. Meadows, III, Capell & Howard, PC, Opelika, AL, for Plaintiff–Appellant.

Fred David Gray, Jr., Fred D. Gray, Sr., Gray, Langford, Sapp, McGowan, Gray, Gray & Nathan, Tuskegee, AL, for Defendant–Appellee.

Appeal from the United States District Court for the Middle District of Alabama.Before DUBINA, Chief Judge, COX, Circuit Judge, and HUNT,^* District Judge.PER CURIAM:

The district court's jurisdiction in this case is not contested, but jurisdiction cannot be created by consent. Lowry v. Int'l Bhd. of Boilermakers, Iron Shipbuilders & Helpers of Am., 259 F.2d 568, 575 (5th Cir.1958). We are obligated to raise concerns about the district court's subject matter jurisdiction sua sponte. Fitzgerald v. Seaboard Sys. R.R., Inc., 760 F.2d 1249, 1251 (11th Cir.1985) (citation omitted).

The complaint in this case alleges that Plaintiff Mallory & Evans Contractors and Engineers, LLC (“Mallory & Evans”) is a “Limited Liability Company created under the laws of the State of Georgia” with “[i]ts principal place of business ... in Scottdale, Georgia.” (Dkt 1 at 1.) This is an insufficient allegation of its citizenship. In Rolling Greens MHP, L.P. v. Comcast SCH Holdings, L.L.C., 374 F.3d 1020, 1022 (11th Cir.2004), we held that a limited liability company, like a partnership, “is a citizen of any state of which a member of the company is a citizen.” We continued: “To sufficiently allege the citizenships of these unincorporated business entities, a party must list the citizenships of all the members of the limited liability company....” Id.

Additionally, the complaint alleges that Defendant Tuskegee University (“Tuskegee”) is “an Alabama institution of higher learning, located in Macon County, Alabama.” (Dkt 1 at 1.) This, too, is an insufficient allegation of citizenship. Section 1332 does not mention institutions of higher learning. 28 U.S.C. § 1332 (2006).

The complaint should allege the citizenship of both Mallory & Evans and Tuskegee. Because we suspect there may be diversity of citizenship, Mallory & Evans is invited to file in this court (within fourteen days after the date of this order) a motion for leave to amend the complaint to correct the deficient allegations of citizenship. “Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts.” 28 U.S.C. § 1653 (2006). See also Firemen's Ins. Co. of Newark, N.J. v. Robbins Coal Co., 288 F.2d 349, 350 (5th Cir.1961). The...