United States District Court 

for the 

Southern District of Florida 

Antonio Pastor, Plaintiff,

v. 

Bank of America, N.A., Defendant. 

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Civil Action No. 22-24121-Civ-Scola 

Order to Show Cause Why This Case Should Not Be Dismissed for Lack of 

Subject Matter Jurisdiction 

This matter is before the Court upon an independent review of the record. 

“As federal courts, we are courts of limited jurisdiction, deriving our power solely 

from Article III of the Constitution and from the legislative acts of Congress,” and 

“we are bound to assure ourselves of jurisdiction even if the parties fail to raise 

the issue.” Harris v. United States, 149 F.3d 1304, 1308 (11th Cir. 1998). In 

addition, “a jurisdictional defect cannot be waived by the parties and may be 

raised at any point during litigation.” Allen v. Toyota Motor Sales, U.S.A., Inc., 

155 F. App’x 480, 481 (11th Cir. 2005). On December 20, 2022, Defendant Bank 

of America, N.A. (“BANA”) filed a notice of removal purporting to remove the 

instant case from Florida state court to federal court. (Rem. Notice, ECF No. 1.) 

The notice of removal alleges subject matter jurisdiction based on diversity 

pursuant to 28 U.S.C. § 1332. (Id. ¶¶ 4–6.) For the reasons stated below, it is 

unclear whether the Court has subject matter jurisdiction. 

28 U.S.C. § 1332, entitled “Diversity of citizenship; amount in controversy; 

costs,” provides, in relevant part, 

(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; 

(2) citizens of a State and citizens or subjects of a foreign state, 

except that the district courts shall not have original 

jurisdiction under this subsection of an action between citizens 

of a State and citizens or subjects of a foreign state who are 

lawfully admitted for permanent residence in the United States 

and are domiciled in the same State; 

. . . 

Case 1:22-cv-24121-RNS Document 18 Entered on FLSD Docket 02/15/2023 Page 1 of 3
28 U.S.C.A. § 1332(a). “[I]t is the burden of the party seeking federal jurisdiction 

to demonstrate that diversity exists by a preponderance of the evidence.” 

McCormick v. Aderholt, 293 F.3d 1254, 1257 (11th Cir. 2002); see Williams v. 

Best Buy Company, Inc., 269 F.3d 1316, 1319 (11th Cir. 2001) (the removing 

party has the burden of proving that federal jurisdiction exists by a 

preponderance of the evidence and the removing party must present facts 

establishing its right to remove).

A national banking association like BANA (indicated by the designator 

N.A.) 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). The notice of removal alleges that BANA has its principal place of 

business in North Carolina. (Rem. Notice ¶ 5, ECF No. 1.) However, BANA’s 

principal place of business is not necessarily the same as its main office, and 

therefore that allegation is insufficient for purposes of determining diversity 

jurisdiction. See, e.g., PNC Bank, N.A. v. Brothers, No. 21-cv-24229-

COOKE/DAMIAN, 2022 U.S. Dist. LEXIS 155115, at *12 (S.D. Fla. Aug. 29, 

2022), report and recommendation adopted, 2022 U.S. Dist. LEXIS 179246, at *1 

(S.D. Fla. Sep. 29, 2022) (Cooke, J.) (“PNC does not allege the State designated in 

its articles of association as its main office. Therefore, PNC has not sufficiently 

pled its citizenship.”). The Court notes that this is not the first time BANA has 

been alerted to the fact that merely pleading its principal place of business is 

insufficient for purposes of establishing diversity jurisdiction. See Rivera v. Bank 

of Am., N.A., No. 8:17-cv-2636-T-36JSS, 2017 U.S. Dist. LEXIS 188793, at *2 

(M.D. Fla. Nov. 15, 2017) (requiring BANA to list its main office as designated in 

its articles of association so that the court can determine if complete diversity 

exists). 

Further, BANA incorrectly relies on 28 U.S.C. § 1332(a)(1) to claim 

diversity of citizenship between it and the Plaintiff Antonio Pastor (“Pastor”). 

(Rem. Notice ¶ 4, ECF No. 1.) Per the notice of removal, Pastor is a “foreign 

citizen from Venezuela.” (Id. ¶ 6.) Therefore the applicable statutory provision is 

§ 1332(a)(2), as it provides for diversity jurisdiction where an action is between 

“citizens of a State,” here presumably BANA, and “citizens or subjects of a 

foreign state,” here Pastor. See Molinos Valle Del Cibao, C. por A. v. Lama, 633 

F.3d 1330, 1340 (11th Cir. 2011) (quoting § 1332(a)(2) to explain that “[a]lienage 

jurisdiction is a form of diversity jurisdiction under which federal courts may 

hear cases between ‘citizens of a State and citizens or subjects of a foreign 

state’”). For present purposes, the importance of this distinction lies in the 

second half of § 1332(a)(2), which proscribes diversity jurisdiction when the 

“action [is] between citizens of a State and citizens or subjects of a foreign state 

who are lawfully admitted for permanent residence in the United States and are 

domiciled in the same State.” (emphasis added.) The notice of removal fails to 

address Pastor’s status in the United States. Thus, the possibility exists that 

Pastor is a lawful permanent resident of the United States domiciled in the same 

State in which BANA has its main office, in which case diversity would be 

destroyed. 

Case 1:22-cv-24121-RNS Document 18 Entered on FLSD Docket 02/15/2023 Page 2 of 3
Accordingly, it is hereby ordered that by February 28, 2023, BANA shall 

show cause why this matter should not be dismissed for lack of subject matter 

jurisdiction. Failure to respond within the time provided will result in the 

dismissal of this case without further notice.

Done and ordered in Miami, Florida, on February 14, 2023.

________________________________

Robert N. Scola, Jr.

United States District Judge

Case 1:22-cv-24121-RNS Document 18 Entered on FLSD Docket 02/15/2023 Page 3 of 3