Barnes et al v. TA Operating LLC

Filing 7

ORDER that the complaint in this action is dismissed for lack of subject matter jurisdiction. IT IS FURTHER ORDERED that the plaintiffs shall file an amended complaint properly stating a jurisdictional basis for this action no later than November 14, 2011. IT IS FURTHER ORDERED that the plaintiffs shall immediately provide a copy of this order to any defendant already served with process. Signed by Judge Paul G Rosenblatt on 11/2/2011. (KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Diane Barnes and Carl Barnes,
Plaintiffs,

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vs.
TA Operating LLC,
Defendant.

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No. CV-11-2157-PHX-PGR

ORDER

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In a complaint filed on November 1, 2011, the plaintiffs allege that the

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Court has diversity of citizenship jurisdiction over this personal injury action

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pursuant to 28 U.S.C. § 1332.1 Having reviewed the complaint, the Court finds

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that the diversity-related jurisdictional allegations therein are patently insufficient

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as a matter of law to establish the existence of subject matter jurisdiction. The

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Court will therefore require the plaintiffs to file an amended complaint properly

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stating a jurisdictional basis for this action. See 28 U.S.C. § 1653; see also,

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Smith v. McCullough, 270 U.S. 456, 459, 46 S.Ct. 338, 339 (1926) ("The

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The complaint inexplicably alleges that the Court also has jurisdiction
over this action pursuant to 28 U.S.C. § 1331 notwithstanding that it is clear from
the complaint that federal question jurisdiction has absolutely no applicability to
this action.

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established rule is that a plaintiff, suing in federal court, must show in his

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pleading, affirmatively and distinctly, the existence of whatever is essential to

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federal jurisdiction, and, if he does not do so, the court, on having the defect

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called to its attention or on discovering the same, must dismiss the case, unless

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the defect be corrected by amendment.")

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The jurisdictional allegation concerning the citizenship of the plaintiffs,

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which is merely that they are “residents of Roscommon, Roscommon County,

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Michigan,” is facially deficient as a matter of law because it has long been

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established that an allegation of residency does not suffice for purposes of

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§ 1332. See Steigleder v. McQuesten, 198 U.S. 141, 143, 25 S.Ct. 616, 617

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(1905) ("It has long been settled that residence and citizenship [are] wholly

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different things within the meaning of the Constitution and the laws defining and

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regulating the jurisdiction of the ... courts of the United States; and that a mere

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averment of residence in a particular state is not an averment of citizenship in

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that state for the purpose of jurisdiction."); accord, Kanter v. Warner-Lambert Co.,

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265 F.3d 853, 857-58 (9th Cir. 2001) (Plaintiffs' complaint ... state[s] that Plaintiffs

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were 'residents' of California. But the diversity jurisdiction statute, 28 U.S.C.

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§ 1332, speaks of citizenship, not of residency. ... [The] failure to specify

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Plaintiffs' state of citizenship was fatal to [the] assertion of diversity jurisdiction.")

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The jurisdictional allegation concerning the defendant, which is merely that

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it is “a Delaware Limited Liability Company authorized to do and doing business

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in the State of Arizona as Petro Shopping Centers,” is also facially deficient as a

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matter of law inasmuch as the citizenship of a limited liability company for

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purposes of § 1332 is the citizenship of each of its members. Johnson v.

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Columbia Properties Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006)

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("Notwithstanding LLCs' corporate traits, ... every circuit that has addressed the

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question treats them like partnerships for the purposes of diversity jurisdiction. ...

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We therefore join our sister circuits and hold that, like a partnership, an LLC is a

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citizen of every state of which its owners/members are citizens.") Since the

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complaint fails to set forth the citizenship of any member of the defendant limited

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liability company, the Court will require the plaintiffs to specifically identity in their

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amended complaint each LLC member by name, specifically allege the type of

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business entity that any non-individual member is, and affirmatively allege the

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state of citizenship of each member.2

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The plaintiffs are advised that their failure to timely or sufficiently comply

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with this order will result in the dismissal of this action for lack of subject matter

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jurisdiction. Therefore,

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IT IS ORDERED that the complaint in this action is dismissed for lack of
subject matter jurisdiction.

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IT IS FURTHER ORDERED that the plaintiffs shall file an amended

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complaint properly stating a jurisdictional basis for this action no later than

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November 14, 2011.

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IT IS FURTHER ORDERED that the plaintiffs shall immediately provide a
copy of this order to any defendant already served with process.
DATED this 2nd day of November, 2011.

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Since only a corporation or an individual may be a citizen for purposes
of § 1332 jurisdiction, the amended complaint must set forth any sub-layers of
partners or members the limited liability company may have.
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