United States District Court, D. Nebraska
CRW MECHANICAL CONSULTING AND FABRICATION, LLC, a limited liability company; Plaintiff,
AARON F. SANDINE, an individual; and AFS FABRICATION, LLC, a limited liability company; Defendants.
MEMORANDUM AND ORDER
C. Buescher United States District Judge.
case comes before the Court on Defendants' Motion to
Remand (Filing 13) and Plaintiff's Motion for
Immediate Order of Attachment (Filing 8). The Court
finds that it has subject-matter jurisdiction over this
matter and denies Defendants' Motion to Remand. The Court
also finds that Plaintiff has not met its burden of
demonstrating one of the prerequisites for statutory
attachment under Neb. Rev. Stat. § 25-1001 (Reissue
2016) by a preponderance of the evidence. Accordingly,
Plaintiff's Motion for Order of Immediate Attachment is
CRW Mechanical Consulting and Fabrication, LLC
(“CRW”), is owned by its sole member Nathan C.
Ruff (“Ruff”). Filing 18-1 at 1. Ruff
purchased a residence in Ohio in August of 2013 and has lived
at the residence since that time. Filing 18-1 at 1.
In the past year, Ruff has been physically present in Ohio
for fifty weeks, and he intends to continue living there.
Filing 18-1 at 1-2. Despite living in Ohio, Ruff
received correspondence from the Internal Revenue Service
through September of 2018 at a Nebraska address. Filing
15 at 2. Ruff also received a few other documents at
various Nebraska addresses. Filing 15 at 1-2. Ruff
may have also licensed his vehicles in Nebraska prior to July
of 2019. Filing 15 at 2.
relates to attachment, Ruff states CRW finished a project for
a customer, and the customer paid the amount due to CRW into
Defendant, AFS Fabrication, LLC's (“AFS”),
bank account at Defendant, Aaron Sandine's
(“Sandine”), direction. Filing 10-1 at
2. Sandine is the sole owner and member of AFS.
Filing 10-1 at 1. According to Ruff, Sandine
misappropriated funds from a customer and misled CRW by
wrongfully routing the customer's payment to his
company's bank account. Filing 10-1 at 2-3. Ruff
alleges he asked Sandine whether the customer had ever paid,
apparently unaware of the customer's payment to AFS.
Filing 10-1 at 2. Documentation provided by Ruff
shows Sandine received $421, 902.41 from the customer.
confirms that he received $421, 902.41 from the customer but
avers that Ruff directed him and AFS to receive all funds
from the customer and pay expenses with those funds.
Filing 17 at 2. Ruff directed him to do so as part
of his plan to make Sandine a partner at CRW. Filing 17
at 3. Sandine provided documentation showing that he
used a portion of the disputed funds to pay subcontractors
for work completed as a part of the underlying project.
Filing 17 at 2; Filing 17 at 24. Sandine
also provided a sample from a text exchange between himself
and Ruff showing Ruff was aware AFS received payment from the
customer. Filing 17 at 21.
Motion to Remand was filed subsequent to Plaintiff's
motion regarding attachment, but the Court must determine
whether it has subject-matter jurisdiction before proceeding
any further. Defendants request that the Court “remand
this matter to the Douglas County District Court” for
further proceedings. Filing 13 at 1. However,
federal courts cannot remand an action originally filed in
federal court. See Streambend Props. II, LLC v.
Ivy Tower Minneapolis, LLC, 781 F.3d 1003, 1017 (8th
Cir. 2015) (“[A] district court has no power to remand
a non-removed case to state court.”); 14C Fed. Prac.
& Proc. Juris. § 3739 (Rev. 4th ed.)
(“Moreover, federal courts cannot remand an action that
was originally filed in federal court.”); see
also28 U.S.C. § 1447 (discussing remand as a
possible “[p]rocedure after removal”
to the substance of Defendants' request, the Court
deduces that Defendants are suggesting this court lacks
subject-matter jurisdiction due to a lack of diversity
between the parties. Accordingly, the Court treats
Defendants' motion as one to dismiss pursuant to
Fed.R.Civ.P. 12(b)(1). There is no dispute as to satisfaction
of the amount-in-controversy requirement or Defendants'
Nebraska citizenship. At issue is CRW's citizenship.
Specifically, Defendants argue Ruff, as the sole member of
CRW, is a citizen of Nebraska while CRW argues Ruff is a
citizen of Ohio. SeeFiling 14 at 3; Filing 18 at
determine diversity jurisdiction, courts look to the
parties' citizenship statuses at the lawsuit's
filing. OnePoint Sols., LLC v. Borchert, 486 F.3d
342, 346 (8th Cir. 2007). “Federal court diversity
jurisdiction of state law claims requires an amount in
controversy greater than $75, 000 and complete diversity of
citizenship among the litigants.” Id.(citing
28 U.S.C. § 1332(a)). “Complete diversity of
citizenship exists where no defendant holds citizenship in
the same state where any plaintiff holds citizenship.”
Id. “An LLC's citizenship, for purposes of
diversity jurisdiction, is the citizenship of each of its
members.” Id. (quoting GMAC Commercial
Credit LLC v. Dillard Dep't Stores, Inc., 357 F.3d
827, 829 (8th Cir. 2004)). Citizenship is established when an
individual is both physically present in a state and has the
intent to make his or her home there. Eckerberg v.
Inter-State Studio & Publ'g Co., 860 F.3d 1079,
1085 (8th Cir. 2017).
Court may receive competent evidence such as affidavits,
deposition testimony, and other evidence in order to resolve
a factual dispute when a factual attack is made on the
jurisdictional allegations of the complaint. Titus v.
Sullivan, 4 F.3d 590, 593 (8th Cir. 1993) (citing
Land v. Dollar, 330 U.S. 731, 735 n.4, 67 S.Ct.
1009, 1011 n.4, 91 L.Ed. 1209 (1947)). “Because at
issue in a factual 12(b)(1) motion is the trial court's
jurisdiction-its very power to hear the case-there is
substantial authority that the trial court is free to weigh
the evidence and satisfy itself as to the existence of its
power to hear the case.” Id. The burden of
proving jurisdiction is on the plaintiff. Id.
CRW is organized as a limited liability company and Ruff is
the sole member, the Court must determine Ruff's personal
citizenship to determine the citizenship of the limited
liability company. Filing 18-1 at 1; see
also OnePoint Sols., LLC, 486 F.3d at 346. CRW
has presented evidence that Ruff purchased a residence in
Ohio in August of 2013 and has lived at the residence since
that time. Filing 18-1 at 1. Ruff has been
physically present in Ohio for approximately fifty out of the
last fifty-two weeks. Filing 18-1 at 1-2. Ruff
further intends to continue living at his Ohio residence.
Filing 18-1 at 1-2. On the other hand, Defendants
have provided evidence that Ruff has a presence in Nebraska,
receives some mail there, and either he or an entity
affiliated with Ruff has a vehicle in Nebraska. Filing 15
at 1-2. Defendants acknowledged at the hearing of this
matter that Defendants have presented no evidence
illustrating that Ruff had Nebraska citizenship as of the
date this action was filed, which was September 13, 2019.
upon the evidence presented, the Court finds Ruff-and
therefore CRW-is a citizen of Ohio. This Court may therefore
exercise diversity ...