Choice Hospice Inc et al v. Axxess Technology Solutions Inc
| Complete Hospice Care of Oklahoma City, Complete Hospice Care, Complete Hospice Care of Eastern Oklahoma, Complete Hospice Care of Southern Oklahoma and Axxess Technology Solutions, Inc. |
| Wells Fargo Bank N.A. |
| 3:2024cv00397 |
| February 20, 2024 |
| US District Court for the Northern District of Texas |
| Ed Kinkeade |
| Contract: Recovery of Overpayment & Enforcement of Judgment |
| 28 U.S.C. § 1332 Diversity-Declaratory Judgment |
| None |
Docket Report
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This docket was last retrieved on March 14, 2024. A more recent docket listing may be available from PACER.
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| Filing 14 NOTICE of Dismissal for Writ of Garnishment and Dissolution of Writs of Garnishment filed by Choice Hospice Inc, Family Choice Hospice LLC, Neighborhood Hospice LLC, Three Rivers Consulting & Management LLC (Good, Kevin) |
Filing 13
ELECTRONIC ORDER: Before the Court is Plaintiffs' Agreed Motion for Extension of Deadline to Submit Amended Application for Writ of Garnishment (the "Agreed Motion") (Doc. No. 12). The Court has considered the Agreed Motion and GRANTS the requested extension. Accordingly, Plaintiffs have until March 14, 2024, to amend their Application for Writ of Garnishment (the "Application") to clarify the Court's subject matter jurisdiction. If Plaintiffs do not amend their Application or fail to do so sufficiently by said-deadline, the Court shall dismiss this action without prejudice and without further notice. See Fed. R. Civ. P. 12(h)(3).Plaintiffs are reminded that local counsel must sign all documents filed with this Court as set forth in the undersigned's Judge Specific Requirements. Plaintiffs' Agreed Motion does not include local counsel's signature. Any filings after the entry of this Order which do not include local counsel's signature will be immediately unfiled regardless of any related deadline. This Court's Judge Specific Requirements can be found on the website for the United States District Court for the Northern District of Texas. (Ordered by Judge Ed Kinkeade on 3/6/2024) (chmb)
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| Filing 12 Unopposed MOTION to Extend Time of time to file amended application for writ of garnishment filed by Choice Hospice Inc, Family Choice Hospice LLC, Neighborhood Hospice LLC, Three Rivers Consulting & Management LLC (Attachments: #1 Exhibit(s) 1) (Selwyn, Douglas) |
| Filing 11 CERTIFICATE OF SERVICE by Choice Hospice Inc re #6 Writ Issued (Selwyn, Douglas) |
| Filing 10 NOTICE of Garnishment re: #1 Application for Writ of Garnishment,,,,, #6 Writ Issued filed by Choice Hospice Inc (Selwyn, Douglas) |
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Filing 9
ELECTRONIC ORDER: On February 21, 2024, the Court entered an order identifying deficiencies in Plaintiffs' allegations pertaining to subject matter jurisdiction. See Doc. No. 7. The Court noted Plaintiffs' failure to properly allege the citizenship of Plaintiffs, the judgment creditors, and Wells Fargo Bank, N.A., the Garnishee (incorrectly identified in the prior order as "Defendant"). Id. The Court did not, however, identify Plaintiffs' failure to allege the citizenship of Axxess Technology Solutions, Inc., Defendant/Judgment Debtor. For diversity jurisdiction to lie in this matter, there must be complete diversity of each Plaintiff's citizenship from the citizenship of both Wells Fargo Bank, N.A. (Garnishee) and Axxess Technology Solutions, Inc. (Defendant/Judgment Debtor). See Berry v. McLemore, 795 F.2d 452, 456 (5th Cir. 1986)Accordingly, if Plaintiffs amend their Application for Writ of Garnishment addressing the jurisdictional deficiencies noted in the prior order, Doc. No. 7, they shall also address the deficiencies related to the citizenship of Axxess Technology Solutions, Inc. (Defendant/Judgment Debtor).Failure to amend or to properly allege the citizenship of ALL PARTIES by March 6, 2024, will result in dismissal without prejudice and without further notice. (Ordered by Judge Ed Kinkeade on 2/23/2024) (chmb)
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Filing 8
ELECTRONIC ORDER: In cases where subject matter jurisdiction is based on diversity under 28 U.S. C. 1332(a), Rule 7.1(a)(2) of the Federal Rules of Civil Procedure requires that each party's disclosure statement "name--and identify the citizenship of--every individual or entity whose citizenship is attributed to that party[.]" Fed. R. Civ. P. 7.1(a)(2). Plaintiffs timely filed their Certificate of Interested Persons (Doc. No. 2), but it does not include the citizenship disclosure statement required by Rule 7.1(a)(2). Assuming they amend their Application for Writ of Garnishment in accordance with the Court's order (Doc. No. 7), Plaintiffs shall file an amended certificate of interested persons which complies with Rule 7.1(a)(2) within 7 days of filing their amended Application. (Ordered by Judge Ed Kinkeade on 2/21/2024) (chmb)
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Filing 7
ELECTRONIC ORDER: The Court has an obligation to examine its subject matter jurisdiction sua sponte at any time. See FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 230-31 (1990); see also Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999) ("[S]ubject-matter delineations must be policed by the courts on their own initiative even at the highest level."). Plaintiffs filed this case in federal court on the basis of diversity jurisdiction, 28 U.S.C. 1332(a). Doc. No. 1 at 2. Accordingly, the parties' citizenship must be completely diverse in that each plaintiff must have a different citizenship from each defendant. Getty Oil Corp., a Div. of Texaco v. Ins. Co. of N. Am., 841 F.2d 1254, 1258 (5th Cir. 1988). Here, Plaintiffs failed to plead the citizenship of any party to this action. "When jurisdiction depends on citizenship, citizenship must be 'distinctly and affirmatively alleged.'" Id. at 1259. For diversity purposes, Plaintiff Choice Hospice, Inc., d/b/a Complete Hospice Care of Oklahoma City ("Choice Inc."), a corporation, is a citizen "of any State by which it has been incorporated and the State where it has its principal place of business. " 28 U.S.C. 1332(c); see J.A. Olson Co. v. City of Winnona, 818 F.2d 401, 404 (5th Cir. 1987); see also Hertz Corp. v. Friend, 559 U.S. 77, 92 (2010) (corporation's principal place of business is its "nerve center, "meaning "the place where a corporation's officers direct, control, and coordinate the corporation's activities."). Choice Inc. includes an address next to its name but provides no additional detail. Doc. No. 1 at 1. Choice Inc. does not distinctly and affirmatively allege the State in which it was incorporated and where its principal place of business is located, and the Court will not assume as much based solely on an address.The remaining three Plaintiffs are limited liability companies--Family Hospice, LLC d/b/a Complete Hospice Care, Three Rivers Consulting & Management, LLC d/b/a Complete Hospice Care of Eastern Oklahoma, and Neighborhood Hospice, LLC d/b/a Complete Hospice Care of Southern Oklahoma (together, the "Choice LLCs"). The citizenship of a limited liability company ("LLC") is determined by the citizenship of each of its members. Carden v. Arkoma Assocs., 494 U.S. 185, 196 (1990); see also V & M Star, LP v. Centimark Corp., 596 F.3d 354, 356 (6th Cir. 2010) (court must also know citizenship of each "sub-member"). As with Choice Inc., Plaintiffs simply include an address next to each of the Choice LLCs' names. Doc. No. 1 at 1-2. Plaintiffs then allege that "[a]ll members of the LLC entities are citizens of [sic]", but they fail to complete the sentence. Id. at 2. The allegations of an LLC's citizenship must include each member's identity and citizenship. Settlement Funding, L.L.C. v. Rapid Settlements, Ltd., 851 F.3d 530, 536 (5th Cir. 2017); Hise Real Estate Invs., LP v. Great Lakes Ins. SE, 2021 WL 217264, at *2 (E.D. Jan. 21, 2021); Linder Enters. v. Martinringle, Inc., Civ. Action No. 3:07-CV-1733-G, 2007 WL 3095382, at *1 (Oct. 22, 2007)(Fish, C.J.) (ordering plaintiff to specifically allege "the names and citizenship of all the members/owners of the defendant Jenterra [LLC]."). Further, an allegation that "all members" are citizens of a particular State is insufficient and fails to "distinctly and affirmatively" allege the citizenship of an LLC. See Getty Oil, 841 F.2d at 1259. For all three Choice LLCs, Plaintiffs must identify each member and their citizenship, through every layer. The Court reminds Plaintiffs that, if any Choice LLC member is a natural person, "citizenship and residence, as often declared by this court, are not synonymous terms." Robertson v. Cease, 97 U.S. 646, 648 (1878). "For natural persons, 1332 citizenship is determined by domicile, which requires residency plus an intent to make the place of residency one's permanent home." SXSW, L.L.C. v. Fed. Ins. Co., 83 F.4th 405, 407 (5th Cir. 2023) (citing Gilbert v. David, 235 U.S. 561, 568-69 (1915)); accord Preston v. Tenet Healthsystem Mem'l Med. Ctr., Inc., 485 F.3d 793, 799 (5th Cir. 2007) ("Domicile requires the demonstration of two factors: residence and the intention to remain.").As for Defendant Wells Fargo Bank, N.A. ("Defendant") which appears to be a national banking association, Defendant is a citizen, for diversity purposes, of "the State designated in its articles of association as its main office." Wachovia Bank v. Schmidt, 546 U.S. 303, 318 (2006). Plaintiffs allege Defendant's "headquarters" are in Sioux Falls, South Dakota. Doc. No. 1 at 2. Plaintiffs must specify in their allegations the State designated in Defendant's articles of association as its main office. The Court will not assume that Defendant's articles of association designated South Dakota as its main office.For these reasons, the Court cannot determine at this time whether diversity jurisdiction exists, which is the sole basis for the Court's subject matter jurisdiction. See Doc. No. 1 at 2; see also Corfield v. Dallas Glen Hills LP, 355 F.3d 853, 857 (5th Cir. 2003). Plaintiffs, the parties seeking the federal forum, bear the burden of establishing this Court's subject matter jurisdiction. See St. Paul Reinsurance Co. v. Greenburg, 134 F.3d 1250, 1253 (5th Cir. 1998). No later than March 6, 2024, Plaintiffs may amend their Application for Writ of Garnishment to properly allege the parties' citizenship in accordance with this Order. If Plaintiffs fail to amend or fail to do so sufficiently, the Court will dismiss this case without prejudice and without further notice. See Fed. R. Civ. P. 12(h)(3).The Court also notes that Plaintiffs allege venue is proper in the Northern District of Texas, Dallas Division "because a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated within this district." Doc. No. 1 at 3. Plaintiffs make no other allegations supporting this assertion. Thus, if Plaintiffs chose to amend their Application for Writ of Garnishment with respect to the parties' citizenship, Plaintiffs shall also provide further allegations supporting their assertion that venue properly lies in this District and Division. (Ordered by Judge Ed Kinkeade on 2/21/2024) (chmb)
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| Filing 6 Writ of Garnishment Issued as to Wells Fargo Bank N.A. (ykp) |
| Filing 5 New Case Notes: A filing fee has been paid. Pursuant to Misc. Order 6, Plaintiff is provided the Notice of Right to Consent to Proceed Before A U.S. Magistrate Judge (Judge Horan). Clerk to provide copy to plaintiff if not received electronically. (ykp) |
| Filing 4 Request for Clerk to issue Writ of Garnishment filed by Complete Hospice Care, Complete Hospice Care of Eastern Oklahoma, Complete Hospice Care of Oklahoma City, Complete Hospice Care of Southern Oklahoma. (Good, Kevin) |
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Filing 3
ORDER: This Order governs requests to file materials in this case under seal. (Ordered by Judge Ed Kinkeade on 2/20/2024) (chmb)
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| Filing 2 CERTIFICATE OF INTERESTED PERSONS/DISCLOSURE STATEMENT by Complete Hospice Care, Complete Hospice Care of Eastern Oklahoma, Complete Hospice Care of Oklahoma City, Complete Hospice Care of Southern Oklahoma. (Clerk QC note: No affiliate entered in ECF). (Good, Kevin) |
| Filing 1 APPLICATION for Writ of Garnishment filed by Complete Hospice Care, Complete Hospice Care of Oklahoma City, Complete Hospice Care of Eastern Oklahoma, Complete Hospice Care of Southern Oklahoma. (Filing fee $402; receipt number ATXNDC-14404616) In each Notice of Electronic Filing, the judge assignment is indicated, and a link to the # Judges Copy Requirements is provided. The court reminds the filer that any required copy of this and future documents must be delivered to the judge, in the manner prescribed, within three business days of filing. Unless exempted, attorneys who are not admitted to practice in the Northern District of Texas must seek admission promptly. Forms, instructions, and exemption information may be found at www.txnd.uscourts.gov, or by clicking here: # Attorney Information - Bar Membership. If admission requirements are not satisfied within 21 days, the clerk will notify the presiding judge. (Attachments: #1 Affidavit(s) Affidavit for Writ of Garnishment, #2 Exhibit(s) Exhibit A - Judgment, #3 Exhibit(s) Exhibit B - Order, #4 Proposed Order Proposed Writ, #5 Cover Sheet Cover Sheet) (Good, Kevin) |
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