Case: 16-20328       Document: 00513831480        Page: 1    Date Filed: 01/11/2017




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT


                                      No. 16-20328                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
D. PATRICK SMITHERMAN,                                                   January 11, 2017
                                                                           Lyle W. Cayce
           Plaintiff - Appellant                                                Clerk

v.

BAYVIEW LOAN SERVICING, L.L.C.,

           Defendants - Appellees




                     Appeal from the United States District Court
                          for the Southern District of Texas
                                USDC No. 4:16-CV-798


Before SMITH, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       D. Patrick Smitherman, proceeding pro se, brought suit against Bayview
Loan Servicing, LLC in Texas state court, alleging various state law claims
regarding foreclosure proceedings related to Smitherman’s mortgage loan.
Bayview removed to federal court under a diversity jurisdiction theory. The
district court denied Smitherman’s motion to remand and then dismissed
Smitherman’s claims with prejudice.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 16-20328    Document: 00513831480     Page: 2   Date Filed: 01/11/2017



                                 No. 16-20328
      But on appeal, Bayview now concedes that “jurisdiction is not
established on the record before the court.” Specifically, the record fails to
provide enough information to determine whether complete diversity exists
between the parties. There is no dispute that Smitherman is a citizen of Texas,
but Bayview’s citizenship is unclear.
      The citizenship of a limited liability company such as Bayview is
“determined by the citizenship of all of its members.” Tewari De-Ox Sys., Inc.
v. Mountain States/Rosen, L.L.C., 

, 483 (5th Cir. 2014) (citing
Harvey v. Grey Wolf Drilling Co., 

, 1080 (5th Cir. 2008)).
Bayview’s sole member is Bayview Asset Management, LLC, which is itself a
limited liability company with “multiple members that are limited liability
companies.” Bayview concedes “that the current record neither identifies nor
establishes the citizenship of all of those sub members at the time of removal.”
If any of those members was a citizen of Texas at the time of removal, complete
diversity would be destroyed.
      Accordingly, we order a limited REMAND to the district court to permit
supplementation of the record and to make findings regarding Bayview’s
citizenship. After the district court has made these determinations, the district
court’s amended opinion shall return to this panel for appropriate action. We
retain jurisdiction during the pendency of the limited remand. Wheeler v. City
of Columbus, 

, 1154 (5th Cir. 1982).




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