In the district court, Bank of America won and Fulcrum lost. Fulcrum appealed. The Fifth Circuit noticed that the pleadings identified Fulcrum as “a limited liability company organized and existing under the laws of the State of Nevada.” As that allegation does not in fact establish Fulcrum’s citizenship, the Court asked for amendment pursuant to 28 U.S.C. § 1653 (“Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts.”) In response, Fulcrum alleged that is members were from Georgia, Nevada, New York, and North Carolina. Because Bank of America is also a citizen of North Carolina, and because “we find no evidence in the record, and Fulcrum has cited none, supporting Fulcrum’s recent assertions that it is a citizen of North Carolina,” the court remanded for the purpose of discovery and findings on the citizenship question. Bank of America v. Fulcrum Enterprises LLC, No. 14-20532 (March 18, 2016, unpublished).
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