IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

IPF AMERICA, INC. )

)

Plaintiff, )

)

v. ) CASE NO: 06-cv-00616-MHT-SRW

)

EISENMANN CORPORATION )

 AND )

HYUNDAI MOTOR MANUFACTURING )

 OF ALABAMA, L.L.C., )

)

Defendants. )

MEMORANDUM OF LAW OF PLAINTIFF

IPF AMERICA, INC. IN SUPPORT OF MOTION TO REMAND

I. INTRODUCTION

Plaintiff, IPF America, Inc (hereinafter referred to as IPF), submits this

Memorandum of Law in support of Plaintiff’s motion to remand this matter to the Circuit

Court of Montgomery, Alabama. Both Defendants have joined in this cause seeking to

invoke Federal Subject Matter Jurisdiction on the basis of diversity of citizenship.

Plaintiff has filed a motion to remand this matter and the Court has set this matter for

adjudication on submitted briefs.

II. ISSUES BEFORE THE COURT.

The sole issue raised by the Defendants in this matter is whether or not diversity

jurisdiction exists in this case pursuant to 28 U.S.C. 1332. Plaintiff raises two issues on

their motion to remand. First, Plaintiff maintains that there is not diversity of citizenship

in this matter sufficient to invoke the provisions of 28 U.S.C. 1332. Plaintiff further

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raises the issue that in the event diversity is found to exist, Defendants are still barred

from proceeding in federal court under the provisions of 28 U.S.C. 1441(b).

III. ARGUMENTS

The Defendants claim that the Court has jurisdiction over this matter under 28

U.S.C. 1332 wherein it states “(a) the district courts shall have original jurisdiction of all

civil actions where the matter in controversy exceeds the sum or value of $75,000,

exclusive of interest and costs, and is between (1) citizens of different states ... “ All

parties herein would agree that the amount in controversy has been met so the focus is

shifted to the residency issue. For purposes of establishing residency of the Plaintiff and

of Defendant Eisenmann, the Court looks to 28 U.S.C. (c)(1) which states “a corporation

shall be deemed to be a citizen of any State by which it has been incorporated and of the

State where it has its principal place of business ...”

Under the provisions of this rule, the Plaintiff is a considered a resident of the

State of Georgia where it was incorporated and the State of Alabama where it maintains

its principal place of business (Attached Exhibit-A). The Defendant Eisenmann is a

resident of the State of Delaware where it was incorporated and of the State of Illinois

where it maintains its principal place of business. However, the Defendant, HMMA, is a

limited liability company that was organized under the laws of the State of Delaware.

The Code does not specifically address the treatment of a limited liability company for

purposes of residency. However, the Supreme Court has stated that “a limited

partnership is not in its own right a citizen of the State that created it within the meaning

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of the federal diversity statute. This Court has firmly resisted extending the wellestablished rule treating corporations as citizens to other artificial entities. Chapman v.

Barney, 129 U.S. 677, 682.” The Supreme Court further stated in Carden v. Arkoma

Assocs., 494 U.S. 185 that “a federal court must look to the citizenship of a partnership’s

limited, as well as its general, partners to determine where there is a complete diversity.”

In the present case, Defendant HMMA was formed in Delaware but runs its operation in

Montgomery, Alabama where most of its partners resides as is evidenced by the

Defendant’s averment in paragraph nine of its notice of removal that it is a resident of the

State of Alabama.

 Plaintiff argues that both HMMA and Plaintiff are deemed residents of the

State of Alabama for purposes of Federal diversity jurisdiction and as a result, diversity

jurisdiction does not apply in this case. In a case argued before the Supreme Court on

October 11, 2005 and cited as No. 04-712; Lincoln Property Co. v. Roche, Justice

Ginsburg delivered a unanimous decision that stated “Since Strawbridge v. Curtiss,3

Cranch 267, this Court has read the statutory formulation between ... citizens of different

States, 28 U.S.C. § 1332(a)(1), to require complete diversity between all plaintiffs and all

defendants. While § 1332 allows plaintiffs to invoke diversity jurisdiction, § 1441 gives

defendants a corresponding opportunity. The scales are not evenly balanced, however.

An in-state plaintiff may invoke diversity jurisdiction, but § 1441(b) bars removal on the

basis of diversity if any party in interest properly joined and served as a defendant is a

citizen of the State in which the action is brought.” Therefore, since Defendant HMMA

is admittedly a resident of the State of Alabama and this action was originally filed in the

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Circuit Court of Montgomery, Alabama, diversity jurisdiction is barred in this case

pursuant to 28 U.S.C. 1441(b).

IV. CONCLUSION

The Plaintiff maintains that there is no Federal Subject Matter Jurisdiction present

in this case under the theory of Diversity of Citizenship and that diversity jurisdiction is

the sole matter before the Court in this case. In the absence of federal jurisdiction, 28

U.S.C. § 1447(c) states “if at any time before final judgment it appears that the district

court lacks subject matter jurisdiction, the case shall be remanded. An order remanding

the case may require payment of just costs and any actual expenses, including attorney

fees, incurred as a result of the removal.” Plaintiff therefore maintains that in the absence

of jurisdiction over this matter, the proper course of action is for the Court to remand it to

the State Court for further proceedings.

This Memorandum of Law is respectfully submitted on this the 15th day of

August, 2006.

___/s/ Robert W. Hendrick_______

Robert W. Hendrick (HEN056)

Post Office Box 877

Wetumpka, Alabama 36092

(334) 263-0014

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CERTIFICATE OF SERVICE

I hereby certify that I have served an exact copy of the Memorandum of Law to

counsel for the Defendants by placing a copy of the same in the United States Mail,

properly addressed and postage prepaid, to the addresses listed below on this the 15th day

of August, 2006.

Alvin Latham (Peck) Fox, Jr.

Maynard Cooper & Gale, PC

201 Monroe Street, Suite 1650

Montgomery, Alabama 36104

Thomas Louis Coppedge

Maynard, Cooper & Gale, P.C.

1901 Sixth Avenue North

2400 AmSouth/Harbert Plaza

Birmingham, Alabama 35203-2618

Richard Neal, Esq.

700 Hyundai Blvd.

Montgomery, Alabama 36105

____/s/ Robert W. Hendrick______

Robert W. Hendrick (HEN056)

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