Greenville Imaging, LLC v. Washington Hospital Corp. , 326 F. App'x 797 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 15, 2009
No. 07-60715 Charles R. Fulbruge III
Clerk
GREENVILLE IMAGING, LLC
Plaintiff-Appellant and Cross-Appellee
v.
WASHINGTON HOSPITAL CORPORATION, doing business as The King’s
Daughters Hospital
Defendant-Appellee and Cross-Appellant
Appeal from the United States District Court
for the Northern District of Mississippi, Greenville
ON PETITION FOR REHEARING
Before JONES, Chief Judge, and GARWOOD and SMITH, Circuit Judges.
PER CURIAM:*
In its review of the record herein in connection with consideration of the
petition for rehearing filed herein by plaintiff-appellant-cross-appellee
Greenville Imaging, LLC in respect to our October 17, 2008 opinion herein, the
court noted that subject matter jurisdiction herein of the district court is
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the
limited circumstances set forth in 5TH CIR . R. 47.5.4.
questionable, as reflected by the pleadings, in that it is founded only on diversity
of citizenship and the sole defendant, Washington Hospital Corporation, is a
Mississippi corporation, and one of the plaintiffs, indeed the sole plaintiff at and
after the end of trial, is and was Greenville Imaging, LLC, an Arkansas Limited
Liability Company, one of the members of which is Mid-South Sports Medicine
and Orthopedic Surgery, LLC, a Mississippi Limited Liability Company, one of
the members of which is a Jeff Almand, a Mississippi resident and citizen. We
requested of the parties information and further briefing on this point in light
of our holding in Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077 (5th Cir. 2008),
in which we held, joining “[a]ll federal appellate courts that have addressed the
issue” (citing some eight circuit court decisions, five of which were handed down
before this case was filed), that “like limited partnerships and other
unincorporated associations or entities, the citizenship of a LLC is determined
by the citizenship of all of its members.” In reply to our request the parties have
confirmed the above stated information and further that under the rule of
Harvey v. Grey Wolf the district court lacks subject matter jurisdiction.1
We are obliged to satisfy ourselves of the trial court’s subject matter
jurisdiction. W RIGHT & M ILLER, C OOPER & F REER, F EDERAL P RACTICE AND
P ROCEDURE, Vol. 13, § 3522 at 126-132 (3rd Ed. 2008).
The district court lacked subject matter jurisdiction.
Accordingly, our prior opinion herein issued October 17, 2008, is
1
The only exception to this is that defendant-appellee Washington
Hospital Corporation argues that it is unfair to apply the Harvey v.
Grey Wolf rule to cases that were filed in Mississippi federal
district courts before that decision because it was generally assumed
in Mississippi federal district courts that LLCs would be treated as
corporations for diversity purposes. We reject this contention. We
note that Harvey v. Grey Wolf did not overrule or depart from any
prior decisions of this court or of any other Court of Appeals.
2
withdrawn; the motion for rehearing directed thereto is therefore denied as
moot; the judgment of the district court is vacated and the case is remanded to
the district court with directions that it be dismissed for want of subject matter
jurisdiction.
VACATED and REMANDED
3