NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KEEHAN TENNESSEE INVESTMENTS, 

LLC; DAVID KEEHAN; DONALD J. 

KEEHAN, Sr.; DURHAM RIDGE 

INVESTMENTS, LLC; WESTLAKE 

BRIAR, LLC; KEEHAN TRUST 

FUNDING, LLC; DONALD J. KEEHAN, 

Jr.; 951 REALTY LTD., 

Plaintiffs-Appellants, 

 v. 

GUARDIAN CAPITAL ADVISORS, INC.; 

PRAETORIUM SECURED FUND, I, L.P.; 

GEORGE V. CRESSON, Individually and 

doing business as Development Finance, LP; 

KENNETH A. MILLER, 

Defendants-Appellees.

No. 15-16303 

D.C. No. 

3:14-cv-00500-RCJ-WGC 

MEMORANDUM*

Appeal from the United States District Court

for the District of Nevada

Robert Clive Jones, District Judge, Presiding

Argued and Submitted April 17, 2017

San Francisco, California

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

JUN 9 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Before: REINHARDT and BERZON, Circuit Judges, and MONTGOMERY, 

District Judge. **

Plaintiff-Appellants (“Plaintiffs”) appeal the district court’s order awarding 

Defendant-Appellees (“Defendants”) Praetorium Secured Fund, I, L.P. 

(“Praetorium”) and George Cresson (“Cresson”) $23,365.50 in attorney’s fees and 

costs under 28 U.S.C. § 1447(c) for the improper removal of this case from Ohio 

state court.1 We have jurisdiction under 28 U.S.C. § 1291, and we reverse.

The underlying dispute in this case concerns financing for a golf course 

development project. Plaintiffs initiated the lawsuit by filing a complaint in Ohio 

state court, and Defendants later removed the action to the United States District 

Court for the District of Ohio, citing diversity jurisdiction under 28 U.S.C. § 1332.

In federal court, Plaintiffs filed an amended complaint that added two 

additional defendants. The case was then transferred to the United States District 

Court for the District of Nevada, where the district court, sua sponte, ordered the 

parties to conduct jurisdictional discovery after perceiving that federal jurisdiction 

 

 ** The Honorable Ann D. Montgomery, United States District Judge for 

the District of Minnesota, sitting by designation.

1 The district court also awarded attorney’s fees and costs to Defendants Guardian 

Capital Advisors, Inc. (“Guardian”) and Kenneth Miller. Plaintiffs appealed that 

award, but Guardian and Miller failed to appear before this court. In light of our 

conclusion with respect to defendants Praetorium and Cresson, we vacate the 

district court judgment awarding attorney’s fees and costs to Guardian and Miller. 

See Fed. R. App. P. 31(c); see also Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 

876, 887 n.7 (9th Cir. 2010). 
3 

might be lacking. During the course of that discovery, the parties ascertained 

jurisdictional facts destroying diversity, and the case was remanded back to Ohio 

state court.

The parties both moved for an award of attorney’s fees and costs under 28 

U.S.C. § 1447(c). The district court concluded that Plaintiffs were responsible for 

the improper removal and awarded fees to Defendants. In this appeal, Plaintiffs 

argue that the district court erred by awarding fees to Defendants because the 

removal statute permits an award of attorney’s fees and costs only to the nonremoving party. Plaintiffs also argue that, if § 1447(c) permits awarding fees to 

the removing party, the district court erred in finding Plaintiffs responsible for the 

improper removal and ordering them to pay Defendants’ attorney’s fees and costs.

Even if fees are available to a removing party under the removal statute, a 

question we leave for another day, the district court abused its discretion in 

awarding fees to Praetorium and Cresson for the improper removal. See Patel v. 

Del Taco, Inc., 446 F.3d 996, 999 (9th Cir. 2006) (noting that the decision to award 

fees is reviewed for an abuse of discretion). 

“The burden of establishing removal jurisdiction . . . lies with the defendant 

seeking removal.” Washington v. Chimei Innolux Corp., 659 F.3d 842, 847 (9th 

Cir. 2011). For purposes of diversity jurisdiction, limited liability companies 

(“LLCs”) and limited partnerships are citizens of every state where their owners, 
4 

members, or partners are citizens. See Johnson v. Columbia Props. Anchorage, 

LP, 437 F.3d 894, 899 (9th Cir. 2006) (“[L]ike a partnership, an LLC is a citizen of 

every state of which its owners/members are citizens.”). Plaintiffs’ state-court 

complaint did not allege facts sufficient to determine whether federal diversity 

jurisdiction existed. Although in their notice of removal Defendants made general 

allegations about Plaintiffs’ citizenships and recited facts from Plaintiffs’ statecourt complaint, nowhere in the notice of removal did Defendants allege facts 

regarding the citizenships of the members of Plaintiff LLCs, even on information 

and belief, nor did they request jurisdictional discovery after removal to determine 

the relevant additional facts. The district court abused its discretion in awarding 

fees to Praetorium and Cresson under these circumstances. Both parties share the 

blame and therefore the responsibility for paying their own costs of litigating a 

jurisdictionally deficient case in federal court for almost a year.

For the foregoing reasons, the judgment of the district court is reversed. The 

case is remanded with directions to vacate the judgment awarding attorney’s fees 

and costs to Defendants.

REVERSED.