United States District Court, D. Utah
CORPORATIVO OHTLI, S.A. de C.V., a Mexican Company, Plaintiff,
NALEX CORDOVA, an individual, WENCO MINING USA, LLC, a Texas limited liability company, LINK 3PL, LLC, a Utah limited liability company, and DOES 1 - 10. Defendants.
MEMORANDUM DECISION AND ORDER
Waddoups United States District Judge
Corporativo Ohtli, S.A. de C.V. entered into an agreement
with Defendant Nalex Cordova to form Wenco Mining USA, LLC
(“Wenco”). Plaintiff and Cordova are the sole
members of Wenco. Plaintiff asserts it purchased $153, 688.24
worth of inventory for use by Wenco
(“Inventory”), which is being held at Link
3PL's warehouse in Salt Lake City. According to
Plaintiff, that Inventory was to remain Plaintiff's
property until Wenco satisfied its debt to Plaintiff.
Nevertheless, when Plaintiff and Cordova agreed to dissolve
Wenco, Cordova allegedly has refused to return the Inventory
to Plaintiff. Plaintiff filed suit in the Third Judicial
District Court of Salt Lake County, State of Utah on or about
December 19, 2017. Defendant Cordova timely removed the
action to this court. Defendant Link 3PL has not been served.
For the reasons stated below, the court concludes it lacks
jurisdiction and therefore remands this case to the Third
Judicial District Court.
Plaintiff is a Mexican company. Complaint, ¶ 1 (ECF No.
Wenco is a Texas LLC, whose sole members are Plaintiff and
Cordova. Complaint, ¶ 3 (ECF No. 2); Defendants'
Answer, ¶ 3 (ECF No. 3).
Complaint asserts Cordova is a resident of Ohio. The Notice
of Removal repeats that Cordova is a resident of Ohio, but
then also states the Defendants are citizens of Ohio, Texas,
and Utah. Notice of Removal, ¶ 7 (ECF No. 2). For
purposes of this memorandum decision, the latter assertion is
sufficient to show Cordova is a citizen of Ohio.
record does not show that LINK 3PL has been served.
Accordingly, the only parties before the court are Plaintiff,
Cordova, and Wenco.
no party has challenged jurisdiction, “district courts
have an independent obligation to address their own
subject-matter jurisdiction and can dismiss actions sua
sponte for a lack of subject-matter jurisdiction.”
City of Albuquerque v. Soto Enters. Inc., 864 F.3d
1089, 1093 (10th Cir. 2017) (citations omitted); see
also 28 U.S.C. § 1447(c) (stating “[i]f at
any time before final judgment it appears that the district
court lacks subject matter jurisdiction, the case shall be
remanded”). “[A] party invoking diversity
jurisdiction bears the burden of proving its existence by a
preponderance of the evidence.” Middleton v.
Stephenson, 749 F.3d 1197, 1200 (10th Cir. 2014)
(citation omitted). Here, Defendant Cordova asserts removal
was “proper under 28 U.S.C. § 1441(b) because this
Court has diversity jurisdiction when the Plaintiff is a
foreign company based in Mexico and Defendants are citizens
of Ohio, Texas, and Utah, respectively.” Notice of
Removal, at 2 (ECF No. 2). While this may be true under
certain conditions, the members of Wenco defeat diversity
jurisdiction under 28 U.S.C. § 1332(a).
diversity purposes, a limited liability company
“depends on the citizenship of . . . each of its
members.” Penteco Corp. Ltd. Partnership-1985A v.
Union Gas Sys., Inc., 929 F.2d 1519, 1523 (10th Cir.
1991) (quotations and citation omitted). This means Wenco
“is a citizen of each state or foreign country of which
any of its [members] is a citizen.” Grupo Dataflux
v. Atlas Global Group, L.P., 541 U.S. 567, 569 (2004).
Wenco has two members-Plaintiff and Cordova. The citizenship
of Wenco therefore is Mexico and Ohio. Accordingly, Plaintiff
does not have a diverse citizenship from all defendants.
when a suit involves an alien on one side, and an alien and a
citizen of a State on the other side, that grouping defeats
jurisdiction. In Grupo Dataflux, the petitioner was
a Mexican corporation and the respondent was “a limited
partnership created under Texas law.” Id. at
568. Two of the respondent's partners were Mexican
citizens and its other partners were citizens of Delaware and
Texas. Id. at 569. Because the petitioner was a
“Mexican corporation, aliens were on both sides of the
case, and the requisite diversity was therefore
absent.” Id. (citation omitted); see also
Ruhrgas Ag. v. Marathon Oil Co., 526 U.S. 574, 584
(1999) (citation omitted) (same); 15-102 Moore's Federal
Practice - Civil § 102.77 (stating “diversity
jurisdiction does not encompass suits . . . involving an
alien on one side and an alien plus a U.S. citizen on the
Plaintiff is a Mexican company and the defendants are
citizens of Mexico and Ohio. The court therefore lacks
subject-matter jurisdiction due to the absence of diversity
under 28 U.S.C. § 1332(a). Accordingly, the court
directs the Clerk of Court to remand this case to ...