Banks v. Janssen Research & Development LLC et al

Filing 4

Order re: 1 Complaint filed by Annie Banks. Banks is ordered to file an amended complaint that cures the defects specified in this Order no later than 12/3/2014. Signed by Magistrate Judge Katherine P. Nelson on 11/19/2014. (cmj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ANNIE BANKS,
Plaintiff,
v.
JANSSEN RESEARCH &
DEVELOPMENT LLC f/k/a/
JOHNSON AND JOHNSON
PHARMACEUITICAL RESEARCH
AND DEVELOPMENT LLC, et al.,
Defendants.

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CIVIL ACTION NO. 14-00522-KD-N

ORDER
This action is before the undersigned Magistrate Judge sua sponte on review
of the Complaint (Doc. 1) filed by the Plaintiff, Annie Banks (“Banks”).

Upon

review, the undersigned finds the Complaint to be deficient for the following reasons.
I.

Subject Matter Jurisdiction

“It is . . . axiomatic that the inferior federal courts are courts of limited
jurisdiction. They are ‘empowered to hear only those cases within the judicial power
of the United States as defined by Article III of the Constitution,’ and which have
been entrusted to them by a jurisdictional grant authorized by Congress.”

Univ. of

S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 409 (11th Cir. 1999) (quoting Taylor v.
Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994)). Accordingly, “it is well settled that
a federal court is obligated to inquire into subject matter jurisdiction sua sponte
whenever it may be lacking.”

Id. at 410. “[A] court should inquire into whether it

has subject matter jurisdiction at the earliest possible stage in the proceedings.”

Id.

The Complaint alleges diversity of citizenship under 28 U.S.C. § 1332(a) as
the sole basis for the Court’s subject matter jurisdiction over the claims in this

action.1 (See id. at 11, ¶ 65).
When a plaintiff files suit in federal court, she must allege facts that, if
true, show federal subject matter jurisdiction over her case exists.
Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994). Those
allegations, when federal jurisdiction is invoked based upon diversity,
must include the citizenship of each party, so that the court is satisfied
that no plaintiff is a citizen of the same state as any defendant. Triggs
v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir. 1998)
(“Diversity jurisdiction requires complete diversity; every plaintiff must
be diverse from every defendant.”). Without such allegations, district
courts are constitutionally obligated to dismiss the action altogether if
the plaintiff does not cure the deficiency. Stanley v. C.I.A., 639 F.2d
1146, 1159 (5th Cir. Unit B Mar. 1981); see also DiMaio v. Democratic
Nat'l Comm., 520 F.3d 1299, 1303 (11th Cir. 2008) (“Where dismissal
can be based on lack of subject matter jurisdiction and failure to state a
claim, the court should dismiss on only the jurisdictional grounds.”
(internal quotation marks omitted)). That is, if a complaint's factual
allegations do not assure the court it has subject matter jurisdiction,
then the court is without power to do anything in the case. See
Goodman ex rel. Goodman v. Sipos, 259 F.3d 1327, 1331, n.6 (11th Cir.
2001) (“ ‘[A district] court must dismiss a case without ever reaching
the merits if it concludes that it has no jurisdiction.’ ” (quoting Capitol
Leasing Co. v. FDIC, 999 F.2d 188, 191 (7th Cir. 1993))); see also Belleri
v. United States, 712 F.3d 543, 547 (11th Cir. 2013) (“We may not
consider the merits of [a] complaint unless and until we are assured of
our subject matter jurisdiction.”).
Travaglio v. Am. Exp. Co., 735 F.3d 1266, 1268 (11th Cir. 2013) (footnote omitted).
See also, e.g., Ray v. Bird & Son & Asset Realization Co., Inc., 519 F.2d 1081, 1082
(5th Cir. 1975) (“The burden of pleading diversity of citizenship is upon the party
invoking federal jurisdiction . . .” (citing Mas v. Perry, 489 F.2d 1396 (5th Cir.

See Fed. R. Civ. P. 8(a)(1) (“A pleading that states a claim for relief must contain a short
and plain statement of the grounds for the court’s jurisdiction…”).

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1974)).2
Banks, as the party invoking this Court’s jurisdiction, bears the initial burden
of pleading sufficient facts establishing jurisdiction. Banks properly alleges that §
1332(a)’s requisite amount in controversy is satisfied by claiming that it “exceeds
$75,000.00, exclusive of interest and costs.”

(Doc. 1 at 11, ¶ 65).

See, e.g.,

Federated Mut. Ins. Co. v. McKinnon Motors, LLC, 329 F.3d 805, 807 (11th Cir.
2003) (“In order to invoke a federal court's diversity jurisdiction, a plaintiff must
claim, among other things, that the amount in controversy exceeds $75,000.” (citing
28 U.S.C. § 1332)).

She also properly alleges the citizenships of the corporate

defendants - Janssen Pharmaceuticals, Inc. f/k/a Janssen Pharmaceutica Inc. f/k/a
Ortho-McNeil-Janssen Pharmaceuticals, Inc. (a citizen of Pennsylvania and New
Jersey (see Doc. 1 at 4-5, ¶ 19)); Bayer Healthcare Pharmaceuticals, Inc. (a citizen of
Delaware and New Jersey (see id. at 6, ¶ 31)); Bayer Corporation (a citizen of
Indiana and Pennsylvania (see id. at 8, ¶ 47)) - by alleging the states under whose
laws they were incorporated and where they have their principal places of business.
See 28 U.S.C. § 1332(c)(1).

However, Banks has failed to properly plead facts

establishing the citizenships of the other parties, beginning with her own
citizenship.
a.

Plaintiff’s Citizenship

First, Banks, a natural person, alleges only that she is a “resident” of

“In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), [the
Eleventh Circuit] adopted as binding precedent all decisions of the former Fifth Circuit
handed down prior to the close of business on September 30, 1981.” Travaglio, 735 F.3d at
1268 n.1.

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Alabama. (Doc. 1 at 3, ¶ 8). The Eleventh Circuit has repeatedly stressed that
“[c]itizenship, not residence, is the key fact that must be alleged . . . to establish
diversity for a natural person.”

Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir.

1994) (emphasis added). See also Travaglio, 735 F.3d at 1269 (“As we indicated in
remanding this case for jurisdictional findings, the allegations in Travaglio’s
complaint about her citizenship are fatally defective.

Residence alone is not

enough.”); Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330, 1342 n.12
(11th Cir. 2011) (“Ordinarily, the complaint must allege the citizenship, not
residence, of the natural defendants.”); Corporate Mgmt. Advisors, Inc. v. Artjen
Complexus, Inc., 561 F.3d 1294, 1297 (11th Cir. 2009) (“If a party fails to specifically
allege citizenship in their notice of removal, the district court should allow that party
to cure the omission…” (quotation marks omitted)); Beavers v. A.O. Smith Elec.
Prods. Co., 265 F. App’x 772, 778 (11th Cir. 2008) (per curiam) (“The plaintiffs’
complaint alleges only the residence of the nearly 100 plaintiffs, not their states of
citizenship. Because the plaintiffs have the burden to affirmatively allege facts
demonstrating the existence of jurisdiction and failed to allege the citizenship of the
individual plaintiffs, the district court lacked subject matter jurisdiction on the face
of the complaint.” (internal citation and quotation omitted)); Crist v. Carnival Corp.,
410 F. App'x 197, 200 (11th Cir. 2010) (per curiam) (“The allegation that Crist is a
‘resident’ of Florida is insufficient for diversity jurisdiction purposes because
residency is not the equivalent of citizenship.”).
“Citizenship is equivalent to ‘domicile’ for purposes of diversity jurisdiction.

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A person's domicile is the place of his true, fixed, and permanent home and principal
establishment, and to which he has the intention of returning whenever he is absent
therefrom.”

McCormick v. Aderholt, 293 F.3d 1254, 1257-58 (11th Cir. 2002)

(citations, quotations, and footnote omitted). See also Travaglio, 735 F.3d at 1269 (“
‘Citizenship is equivalent to “domicile” for purposes of diversity jurisdiction.’

And

domicile requires both residence in a state and ‘an intention to remain there
indefinitely....’ ” (quoting McCormick, 293 F.3d at 1257-58 (internal quotation marks
omitted)) (internal citation omitted)); Mas, 489 F.2d at 1399 (“For diversity
purposes, citizenship means domicile; mere residence in the State is not sufficient.”).
As such, if Banks wishes to adequately plead diversity, she must allege her
state of citizenship/domicile.
b.

LLC Parties

Unlike a corporation, for purposes of assessing diversity of citizenship “a
limited liability company is a citizen of any state of which a member of the company
is a citizen.”

Rolling Greens, MHP, L.P. v. Comcast SCH Holdings, L.L.C., 374 F.3d

1020, 1022 (11th Cir. 2004) (per curiam). Accord Mallory & Evans Contractors &
Eng’rs, LLC v. Tuskegee Univ., 663 F.3d 1304, 1305 (11th Cir. 2011) (per curiam).
Therefore, to sufficiently allege the citizenship of an LLC, “a party must list the
citizenships of all the members of the limited liability company . . .”

Rolling Greens,

374 F.3d at 1022.
Banks alleges that the sole member of Defendant Bayer Healthcare LLC is
Defendant Bayer Corporation.

(Doc. 1 at 8-9, ¶¶ 48, 52)

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As such, Bayer

Healthcare LLC, like Bayer Corporation, see supra, is a citizen of Indiana and
Pennsylvania. However, Banks has not alleged the citizenships of the members of
the other two LLC defendants, Janssen Research & Development LLC f/k/a Johnson
and Johnson Research and Development LLC, and Janssen Ortho LLC, which she
must do in order to establish diversity jurisdiction over this action.3 “This can
require tracing through several layers.”

BouMatic, LLC v. Idento Operations, BV,

759 F.3d 790, 791 (7th Cir. 2014) (Easterbrook, J.) (citing Cosgrove v. Bartolotta, 150
F.3d 729 (7th Cir. 1998) (citizenship of an LLC depends on citizenship of its
members, traced through as many levels as necessary to reach corporations or
natural

persons)).

See

also

Azzo

v.

Jetro

Rest.

Depot,

LLC,

No.

3:11-CV-324-J-34JRK, 2011 WL 1357557, at *2 n.2 (M.D. Fla. Apr. 11, 2011) (in
pleading the citizenships of the members, “each member's citizenship must [also ]be
properly alleged, be it an individual, corporation, LLC, or other entity”)
c.

“AG” Parties

Regarding Defendants Bayer Pharma AG, Bayer Healthcare AG, and Bayer
AG (“the AG Defendants”), Banks alleges only that they are “companies,” with Bayer
Pharma AG and Bayer Healthcare AG being “domiciled” in Germany and with Bayer
AG being a “German” company “headquartered” in Germany. (Doc. 1 at 7, ¶ 38; 10,

Banks alleges that Janssen Ortho LLC “is a subsidiary of Johnson & Johnson.”
(Doc. 1 at 5, ¶ 25). This statement is insufficient to identify the LLC’s membership.
Moreover, to the extent Banks is claiming “Johnson & Johnson” is a member/the sole
member of the LLC, she has not alleged “Johnson & Johnson’s” citizenship.
Banks also alleges that “Defendant Bayer AG is the parent/holding company of all
other named Defendants.” (Doc. 1 at 10, ¶ 61). This statement too is insufficient to
identify the membership of the LLC defendants. Moreover, Banks has failed to adequately
allege the citizenship of Bayer AG, see infra.

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¶¶ 55, 59). Banks has made no attempt to explain what the suffix “AG” means, and
the label “company” is of no help in determining how the AG Defendants should be
treated for purposes of diversity.
Generally, “a corporation shall be deemed to be a citizen of every State and
foreign state by which it has been incorporated and of the State or foreign state
where it has its principal place of business…”

28 U.S.C § 1332 (c)(1).

Even

assuming the AG Defendants are to be treated as corporations, Banks has provided
no information establishing the citizenship of either Bayer Pharma AG or Bayer
Healthcare AG.
However, a court should not “assume[] that [a foreign state] has business
entities that enjoy corporate status as the United States understands it[,]” as “not
even the United Kingdom has a business form that is exactly equal to that of a
corporation.”

White Pearl Inversiones S.A. (Uruguay) v. Cemusa, Inc., 647 F.3d 684,

686 (7th Cir. 2011). “Deciding whether a business enterprise based in a foreign
nation should be treated as a corporation for the purpose of § 1332 can be difficult.
Businesses in other nations may have attributes that match only a subset of those
that in the United States distinguish a ‘corporation’—a business with indefinite
existence, personhood (the right to contract and litigate in its own name), limited
liability for equity investors, and alienable shares, among other features—from
forms such as the limited liability company, the limited partnership, and the
business trust.”

Fellowes, Inc. v. Changzhou Xinrui Fellowes Office Equip. Co., 759

F.3d 787, 788 (7th Cir. 2014) (Easterbrook, J.) (vacating district court’s judgment

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and remanding with instructions to dismiss for want of subject-matter jurisdiction
where, on appeal, the defendant business established under the law of China was
found to be “closer to a limited liability company than to any other business
structure in this nation,” thus defeating diversity where both the plaintiff and a
member of the defendant entity were citizens of Illinois) (internal citation omitted).
See also BouMatic, 759 F.3d at 791 (“Classification of a foreign business entity can
be difficult, because other nations may use subsets of the characteristics that
distinguish corporations from other business entities in the United States.” (internal
citation omitted)).
“In Carden v. Arkoma Assocs., 494 U.S. 185, 195–96, 110 S. Ct. 1015, 1021,
108 L. Ed. 2d 157 (1990), the Supreme Court held that for purposes of diversity of
citizenship, a limited partnership is a citizen of each state in which any of its
partners, limited or general, are citizens.

In reaching this holding, the Court noted

the long-standing rule that the citizenship of an artificial, unincorporated entity
generally depends on the citizenship of all the members composing the
organization.”

Rolling Greens, 374 F.3d at 1021.

Thus, “the Court in Carden

provided a general rule: every association of a common-law jurisdiction other than a
corporation is to be treated like a partnership. That rule applies without regard to
the corporation-like features or other business realities of the artificial entity.”
Underwriters at Lloyd's, London v. Osting-Schwinn, 613 F.3d 1079, 1087 (11th Cir.
2010) (internal citation and quotations omitted).

Moreover, “[i]f it is hard to

determine whether a business entity from a common-law nation is equivalent to a

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‘corporation,’ it can be even harder when the foreign nation follows the civil-law
tradition.”

White Pearl Inversiones, 647 F.3d at 686 (“Uruguay has at least three

forms of limited-liability businesses: sociedad anónima (S.A.), sociedad anónima
financiera de inversión (S.A.F.I.), and sociedad responsabilidad limitada (S.R.L.).
White Pearl did not say which kind it is, and its lawyers did not analyze whether
that kind of business organization should be treated as a corporation. We learned at
oral argument that White Pearl's lawyers did not know—indeed, that they did not
even know their client's legal name and had not tried to analyze the significance of
its (unknown) organizational attributes. They simply assumed that Uruguay has
such a beast as a ‘corporation’ and that White Pearl is one. The lawyers for Cemusa
made the same assumption.”).
As such, if Banks wishes to adequately plead diversity, she must allege what
kind of entity the AG Defendants are – that is, whether they are corporate or
unincorporated entities. If they are to be treated as corporations, she must allege
“every State and foreign state by which [each] has been incorporated and []the State
or foreign state where [each] has its principal place of business…” § 1332(c)(1). If
they are to be treated as unincorporated entities, she must allege the citizenships of
their members.
“Defective allegations of jurisdiction may be amended, upon terms, in the trial
or appellate courts.”

28 U.S.C. § 1653. “[L]eave to amend should be freely granted

when necessary to cure a failure to allege jurisdiction properly.”

Majd-Pour v.

Georgiana Cmty. Hosp., Inc., 724 F.2d 901, 903 n.1 (11th Cir. 1984).

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As such,

Banks will be given an opportunity to file an amended complaint that properly
alleges subject matter jurisdiction.
II.

“Shotgun” Pleading

Apart from the defects in her allegations supporting subject matter, see
supra, Banks’s Complaint, clocking in at 46 pages with 241 separate numbered
paragraphs, is also defective because it is a “proverbial shotgun pleading,” as it
“incorporate[s] every antecedent allegation by reference into each subsequent claim
for relief . . .”

Wagner v. First Horizon Pharm. Corp., 464 F.3d 1273, 1279 (11th Cir.

2006). See also, e.g., Strategic Income Fund, L.L.C. v. Spear, Leeds & Kellogg Corp.,
305 F.3d 1293, 1295 (11th Cir. 2002) (“The typical shotgun complaint contains
several counts, each one incorporating by reference the allegations of its
predecessors, leading to a situation where most of the counts (i.e., all but the first)
contain irrelevant factual allegations and legal conclusions. Consequently, in ruling
on the sufficiency of a claim, the trial court must sift out the irrelevancies, a task
that can be quite onerous.”); Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll., 77
F.3d 364, 366 (11th Cir. 1996) (“Anderson's complaint is a perfect example of
‘shotgun’ pleading, in that it is virtually impossible to know which allegations of fact
are intended to support which claim(s) for relief.” (internal citation omitted));
Magluta v. Samples, 256 F.3d 1282, 1284 (11th Cir. 2001) (per curiam) (“Each count
incorporates by reference the allegations made in a section entitled ‘General Factual
Allegations’…while also incorporating the allegations of any count or counts that
precede it. The result is that each count is replete with factual allegations that could

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not possibly be material to that specific count, and that any allegations that are
material are buried beneath innumerable pages of rambling irrelevancies. This
type of pleading completely disregards Rule 10(b)'s requirement that discrete claims
should be plead in separate counts…”). The Complaint is also “shotgun” in nature
because “all defendants are charged in each count[,]” and “[t]he complaint is replete
with allegations that ‘the defendants’ engaged in certain conduct, making no
distinction among the []defendants charged…”

Magluta, 256 F.3d at 1284.

In this Circuit, “shotgun pleadings” have “been roundly, repeatedly, and
consistently condemn[ed] for years, long before this lawsuit was filed.”

Davis v.

Coca-Cola Bottling Co. Consol., 516 F.3d 955, 979 & n.54 (11th Cir. 2008). See also,
e.g., id. at 981-84 (discussing at length the “unacceptable consequences of shotgun
pleading”); Paylor v. Hartford Fire Ins. Co., 748 F.3d 1117, 1125-28 (11th Cir. 2014)
(discussing “the persistence of the shotgun pleading problem”); Wagner, 464 F.3d at
1279 (“ ‘[S]hotgun pleadings wreak havoc on the judicial system.’ Byrne v. Nezhat,
261 F.3d 1075, 1130 (11th Cir. 2001). “When presented with a shotgun complaint,
the district court should order repleading sua sponte.”

Ferrell v. Durbin, 311 F.

App'x 253, 259 n.8 (11th Cir. 2009) (per curiam) (unpublished) (citing Wagner, 464
F.3d at 1280)). See also, e.g., Davis, 516 F.3d at 984 (“In light of defense counsel's
failure to request a repleader, ‘the court, acting sua sponte, should have struck the
plaintiff's complaint, and the defendants' answer, and instructed plaintiff's counsel
to file a more definite statement.’ ” (quoting Anderson, 77 F.3d at 367 n.5)); Paylor,
748 F.3d at 1127 (same); Johnson Enters. of Jacksonville, Inc. v. FPL Grp., Inc., 162

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F.3d 1290, 1333 (11th Cir. 1998) (“We recognize the time pressures that the federal
district courts face because of crowded dockets; it is much easier in the short term to
permit shotgun pleadings—in the hope that the parties will settle their
dispute—instead of intervening sua sponte to narrow the issues. In the long term,
however, the judicial work that results from shotgun pleading is far more time
consuming than the work required up front to prevent the case from proceeding
beyond the pleadings until the issues are reasonably well defined. As we have
previously stated, and state once again, district courts have the power and the duty
to define the issues at the earliest stages of litigation.”).
Indeed,
[i]f the trial judge does not quickly demand repleader, all is
lost—extended and largely aimless discovery will commence, and
the trial court will soon be drowned in an uncharted sea of
depositions, interrogatories, and affidavits. Given the massive
record and loose pleadings before it, the trial court, whose time is
constrained by the press of other business, is unable to squeeze
the case down to its essentials; the case therefore proceeds to
trial without proper delineation of issues, as happen[s]
[frequently]. An appeal ensues, and the court of appeals assumes
the trial court's responsibility of sorting things out. The result is
a massive waste of judicial and private resources; moreover, the
litigants suffer, and society loses confidence in the court[s']
ability to administer justice.
Johnson Enter. of Jacksonville, Inc. v. FPL Group, Inc., 162 F.3d 1290,
1333 (11th Cir. 1998) (internal citations and quotations omitted).
Paylor, 748 F.3d at 1127-28.
As such, Banks must also amend her complaint to allege with greater
specificity which factual allegations support each claim for relief and to clarify which

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claims are asserted against each individual defendant.
III.

Conclusion

Accordingly, Banks is hereby ORDERED to file, no later than Wednesday,
December 3, 2014, an amended complaint that cures the defects specified in this
Order.4

The amended complaint, if filed, shall become the operative complaint in

this action.5

Banks shall serve the Defendants with the amended complaint, and

the Defendants shall respond to the amended complaint within the time permitted
by Federal Rule of Civil Procedure 15(a)(3).
DONE and ORDERED this the 19th day of November 2014.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

In this District, “[a]ll civil actions” are “automatically referred” to the Magistrate Judges,
inter alia, “for the purpose of hearing and determining all nondispositive pretrial motions.”
SD ALA Local Rule 72.2(c)(1). Amendment of pleadings is generally considered a
non-dispositive pretrial matter. See 12 Charles Alan Wright et al., Fed. Prac. & Proc. Civ. §
3068.1 (2d ed. 1997); 32 Am. Jur. 2d Federal Courts § 132.

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“As a general matter, ‘[a]n amended pleading supersedes the former pleading; the original
pleading is abandoned by the amendment, and is no longer a part of the pleader's averments
against his adversary.’ ” Pintando v. Miami-Dade Hous. Agency, 501 F.3d 1241, 1243 (11th
Cir. 2007) (per curiam) (quoting Dresdner Bank AG, Dresdner Bank AG in Hamburg v. M/V
OLYMPIA VOYAGER, 463 F.3d 1210, 1215 (11th Cir. 2006) (citation and quotation
omitted)). See also, e.g., Fritz v. Standard Sec. Life Ins. Co. of New York, 676 F.2d 1356,
1358 (11th Cir. 1982) (“Under the Federal Rules, an amended complaint supersedes the
original complaint.”).

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