United States District Court, E.D. Louisiana
ORDER AND REASONS ON MOTION
C. WILKINSON, JR., UNITED STATES MAGISTRATE JUDGE.
Hibbard Inshore, LLC's ("Hibbard") Motion for
Leave to File Amended Notice of Removal, Record Doc. No. 14,
is before me. Hibbard, a limited liability company
("LLC"), seeks leave of court to amend its notice
of removal to state the citizenship of its individual members
for purposes of clarifying diversity jurisdiction under 28
U.S.C. § 1332. Plaintiff filed a timely opposition
memorandum. Record Doc. No. 27. For the following reasons,
the motion is GRANTED.
Fifth Circuit precedent, an LLC is not treated as a
corporation for purposes of diversity jurisdiction.
Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077,
1080 (5th Cir. 2008). "Rather, the citizenship of a LLC
is determined by the citizenship of all of its members."
Id. “The party seeking to invoke federal
jurisdiction has the burden to prove by a preponderance of
the evidence that federal jurisdiction exists. The basis for
diversity jurisdiction must be distinctly and
affirmatively alleged.” Menendez v.
Wal-Mart Stores, Inc., 364 Fed.Appx. 62, 65 (5th Cir.
2010) (quoting Mullins v. TestAmerica, Inc., 564
F.3d 386, 397 (5th Cir. 2009)) (citing New Orleans &
Gulf Coast Ry. v. Barrois, 533 F.3d 321, 327 (5th Cir.
“[d]efective allegations of jurisdiction may be
amended, upon terms, in the trial or appellate courts.”
28 U.S.C. § 1653. This statute “grants courts the
authority and discretion to allow parties to cure defective
allegations of jurisdiction. . . . [Section] 1653 should be
liberally construed to allow a party to cure technical
defects, including the failure to specifically allege the
citizenship of the parties.” Menendez, 364
Fed.Appx. at 65 (citing Getty Oil Corp. v. Ins. Co. of N.
Am., 841 F.2d 1254, 1258 n. 5 (5th Cir. 1988);
Whitmire v. Victus Ltd., 212 F.3d 885, 887-88 (5th
Cir. 2000); see also Labeaud v. Knight,
2011 WL 4625386, at *2 (E.D. La. Oct. 3, 2011) (citing
Menendez, 364 Fed.Appx. at 67-68; D.J. McDuffie,
Inc. v. Old Reliable Fire Ins. Co., 608 F.2d 145, 146
(5th Cir. 1979)) (“Among the most common ‘purely
technical' defects which may be remedied by amendment is
a defective allegation as to the citizenship of the
parties.”). However, the Fifth Circuit
do[es] not generally recognize post-filing or post-removal
amendment as cure for jurisdictional defect. Although 28
U.S.C. § 1653 and [Rule] 15(a) allow amendments to cure
defective jurisdictional allegations, these rules do not
permit the creation of jurisdiction when none existed at the
time the original complaint was filed or removed.
Camsoft Data Sys., Inc. v. S. Elecs. Supply, Inc.,
756 F.3d 327, 337 (5th Cir. 2014) (quotation and citations
proposed amendment does not purport to create a
basis for jurisdiction that did not exist when this defendant
filed its notice of removal. Rather, the amendment inserts
new paragraphs and affidavits to correct partially defective
allegations of citizenship by stating the previously omitted
citizenship of LLC members Jay and Bradley Hibbard and
clarifying that the named defendant is allegedly diverse from
plaintiff. Record Doc. Nos. 14-4, 14-5, 14-6.
section 1653 should be liberally construed, it is also true
that the party wishing to cure defective allegations cannot
engage in bad faith or undue delay.” First Bank
& Trust v. Jones, 2014 WL 4072116, at *3 (E.D. La.
Aug. 13, 2014) (internal quotation omitted) (citing Getty
Oil, 841 F.2d at 1258 n.5; Miller v. Stanmore,
636 F.2d 986, 990 (5th Cir. 1981); Rios v. Mall of
La., 2014 WL 2207985, at *2 (M.D. La. May 28, 2014)).
This action was removed on February 15, 2019. Record Doc. No.
1. This motion was filed only about one month later, on March
18, 2019. Record Doc. No. 14. A motion to remand this matter
to state court is pending before the district judge and both
parties have submitted briefing on that motion. Record Doc.
Nos. 11, 13, 29. No. scheduling order setting dates and
deadlines, including any deadlines for amending pleadings,
has yet been issued. Plaintiff's sole argument in his
opposition is that defendant failed adequately to specify the
citizenship and name of each LLC member in its proposed
amended notice of removal. Record Doc. No. 27 at p. 2. This
argument is better addressed on the pending motion to remand
on a complete and accurate pleading record. Under these
circumstances, I cannot find that undue delay or bad faith