Higbee Salva, L.P. v. 212-3 Eastern Shore Holdings, LLC

Filing 3

Order that plaintiff file an Amended Complaint that addresses diversity by 5/3/2017. Plaintiff's Disclosure Statement Due by 5/3/2017. Signed by Magistrate Judge Katherine P. Nelson on 4/19/2017. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
HIGBEE SALVA, L.P.,
Plaintiff,
v.
212-3 EASTERN SHORE
HOLDINGS, LLC,
Defendant.

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CIVIL ACTION NO. 17-00164-N

ORDER
This action is before the Court sua sponte on review of its subject matter
jurisdiction.1 The Plaintiff initiated this action by filing a complaint (Doc. 1) with
the Court, alleging diversity of citizenship under 28 U.S.C. § 1332(a) as the sole
basis for jurisdiction.

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…”).
When a plaintiff files suit in federal court, [the plaintiff] must allege
facts that, if true, show federal subject matter jurisdiction over [the]
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
“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. See also See
Arbaugh v. Y&H Corp., 546 U.S. 500, 514, (2006) (“[C]ourts, including this Court,
have an independent obligation to determine whether subject-matter jurisdiction
exists, even in the absence of a challenge from any party.”).

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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) (emphasis added)
(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. 1974)).2

Upon review of the complaint (Doc. 1), the undersigned finds

that the Plaintiff has failed to allege sufficient facts showing the citizenship of either

“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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party for purposes of diversity jurisdiction.3
The Plaintiff alleges the citizenships of each of the artificial entity parties as
though they were corporations.

See 28 U.S.C. § 1332(c)(1).

However, per the

Plaintiff’s allegations, the Plaintiff is a limited partnership (LP), while the
Defendant is a limited liability company (LLC). The rule for diversity jurisdiction
is “that the citizenship of an artificial, unincorporated entity generally depends on
the citizenship of all the members composing the organization.”

Rolling Greens,

MHP, L.P. v. Comcast SCH Holdings, L.L.C., 374 F.3d 1020, 1021 (11th Cir. 2004)
(per curiam) (citing Carden v. Arkoma Assocs., 494 U.S. 185, 195-96 (1990)). See
also Americold Realty Trust v. Conagra Foods, Inc., 136 S. Ct. 1012, 1016 (2016) (“So
long as … an entity is unincorporated, we apply our ‘oft-repeated rule’ that it
possesses the citizenship of all its members.” (reaffirming Carden)). As such, “[t]o
sufficiently allege the citizenships of these unincorporated business entities, [the
Plaintiff] must list the citizenships of all the members of the limited liability
company and all the partners of the limited partnership.”

Rolling Greens, 374 F.3d

at 1022. Accord Mallory & Evans Contractors & Eng’rs, LLC v. Tuskegee Univ., 663
F.3d 1304, 1305 (11th Cir. 2011) (per curiam).4

The Plaintiff has not done so.5

For purposes of the present sua sponte review, the undersigned finds that the
Plaintiff has alleged sufficient facts showing § 1332(a)’s requisite amount in
controversy.

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This “can require tracing through several layers.” BouMatic, LLC v. Idento
Operations, BV, 759 F.3d 790, 791 (7th Cir. 2014) (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.

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“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

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”).
The sole cause of action in the Complaint is one for declaratory judgment under
the federal Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202.

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Of course, it is well established that the Declaratory Judgment Act does
not, of itself, confer jurisdiction upon federal courts. See, e.g., Household
Bank v. JFS Group, 320 F.3d 1249, 1253 (11th Cir. 2003); see also
Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240, 57 S. Ct. 461, 463, 81
L. Ed. 617 (1937) (“[T]he operation of the Declaratory Judgment Act is
procedural only.”). Rather, in the context of a declaratory judgment
action, “the normal position of the parties is reversed; therefore, we do
not look to the face of the declaratory judgment complaint in order to
determine the presence of a federal question.” Hudson Ins. Co. v. Am.
Elec. Corp., 957 F.2d 826, 828 (11th Cir. 1992). “Instead, this court
must determine whether or not the cause of action anticipated by the
declaratory judgment plaintiff arises under federal law.” Id. Our
inquiry is thus “whether, absent the availability of declaratory relief,
the instant case could nonetheless have been brought in federal court.
To do this, we must analyze the assumed coercive action by the
declaratory judgment defendant.” Gulf States Paper Corp. v. Ingram,
811 F.2d 1464, 1467 (11th Cir. 1987), abrogated on other grounds by
King v. St. Vincent's Hosp., 502 U.S. 215, 217, 112 S. Ct. 570, 572, 116
L.Ed.2d 578 (1991); see also 22A Am.Jur.2d Declaratory Judgments §
202 (2003). Federal question jurisdiction “exists in a declaratory
judgment action if the plaintiff has alleged facts in a well-pleaded
complaint which demonstrate that the defendant could file a coercive
action arising under federal law.” Household Bank, 320 F.3d at 1251
(emphasis added).
Stuart Weitzman, LLC v. Microcomputer Res., Inc., 542 F.3d 859, 861–62 (11th Cir.
2008).
Suffice it to say, the complaint provides no basis for determining that federal
question jurisdiction exists in this declaratory judgment action.

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).

Upon

consideration, the Plaintiff is ORDERED to file, no later than Wednesday, May 3,
2017, an amended complaint that sufficiently alleges the citizenship of both artificial
entity parties for purpose of diversity jurisdiction under § 1332(a), or that alleges
some alternative basis for subject matter jurisdiction.

In filing the amended

complaint, the Plaintiff must abide by the following directives:
•

The amended complaint shall reproduce the entire original complaint as
amended, see S.D. Ala. CivLR 15(a) (“Any amendment to a pleading … must
reproduce the entire pleading as amended and may not incorporate any prior
pleading by reference.”), and will become the operative complaint in this
action.6

•

The Plaintiff must file the amended complaint as a freestanding pleading and
not as an exhibit attached to a notice, motion, etc.
Any filing made in contravention of these directives will be deemed

nonresponsive to this Order and will be summarily ordered stricken. Moreover, the
failure to file an amended complaint as ordered could result in dismissal of this

“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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action for lack of subject matter jurisdiction under Federal Rule of Civil Procedure
12(h)(3) (“If the court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”).
The Plaintiff is further ORDERED to file a disclosure statement in
accordance with S.D. Ala. CivLR 7.1 no later than Wednesday, May 3, 2017.7
DONE and ORDERED this the 19th day of April 2017.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

Form available at:
www.alsd.uscourts.gov/sites/alsd/files/forms/CivilDisclosureStatement.pdf

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