Moreno et al v. Youngquist Brothers, Inc. et al
Filing
69
OPINION AND ORDER granting 53 Motion to dismiss for Lack of Jurisdiction and the 48 Third Amended Complaint is dismissed without prejudice. Plaintiff may file a Fourth Amended Complaint within 90 days if complete diversity of citizenship can be and is properly alleged. If no Fourth Amended Complaint is filed, the file will be closed without further notice. Signed by Judge John E. Steele on 6/9/2011. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MARIA
ELENA
MORENO,
personal
representative of the Estate of Abel
G. Dominguez, MARIA ANA LOPEZ, as
guardian for A.A.D. and A.D., minor
children of the deceased
Plaintiffs,
vs.
Case No.
2:09-cv-566-FtM-29DNF
BREITBURN FLORIDA, LLC, a California
limited liability company, United
States of America
Defendants.
___________________________________
OPINION AND ORDER
This matter comes before the Court on Defendant, Breitburn
Florida, LLC’s (Brietburn or defendant) Dispositive Motion To
Dismiss for Lack of Subject Matter Jurisdiction (Doc. #53) filed on
March 3, 2011.
2011.
Plaintiff filed a Response (Doc. #65) on April 27,
After leave was granted, Breitburn filed a Reply (Doc. #68)
on May 9, 2011.
Subject-matter jurisdiction in the Third Amended Complaint
(Doc. #48, ¶4) is premised on diversity of citizenship under Title
28, United States Code, Section 1332.
This requires complete
diversity of citizenship, and that the matter in controversy exceed
the sum or value of $75,000, exclusive of interest and costs.
28
U.S.C. § 1332(a); Morrison v. Allstate Indem. Co., 228 F.3d 1255,
1261 (11th Cir. 2000).
“Since Strawbridge v. Curtiss, 7 U.S. 267,
3 Cranch 267, 2 L. Ed. 435 (1806), we have read the statutory
formulation ‘between . . . citizens of different States’ to require
complete diversity between all plaintiffs and all defendants.”
Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005).
In an action
filed directly in federal court, plaintiff bears the burden of
adequately pleading, and ultimately proving, jurisdiction.
King
v. Cessna Aircraft Co., 505 F.3d 1160, 1171 (11th Cir. 2007).
As
this Court has stated before in this case, a limited liability
company is a citizen of every state in which one of its members is
located.
Rolling Greens MHP, L.P. v. Comcast SCH Holdings, LLC.,
374 F.3d 1020 (11th Cir. 2004).
A partnership is a citizen of each
state in which any of its partners, limited or general, are
citizens.
Carden v. Arkoma Assocs., 494 U.S. 185, 195-96 (1990).
Plaintiffs allege that defendant Breitburn Florida, LLC is “a
citizen of Delaware” and is comprised and owned by Breitburn
Operating LP, also a “citizen of Delaware,” which is comprised of
Breitburn
Operating
Brietburn Energy LP.
GP,
LLC,
which
(Id. at ¶10.)
in
turn
is
comprised
of
Plaintiff then lists the
“managing members” of Breitburn Energy LP and Breitburn GP LLC.
(Id.)
Plaintiff then admits that there are other members of the
limited liability company who are not listed.
(Id. at ¶11.)
Plaintiff argues that because “at least one of the current managing
members is a citizen of another state . . .” that diversity
-2-
jurisdiction is proper.
(Id.)
This, of course, is incorrect,
since complete diversity of citizenship is required.
Plaintiffs have not sufficiently alleged the citizenship of
the
defendant,
and
therefore
diversity jurisdiction.
have
not
sufficiently
alleged
A conclusory allegation that there is
diverse citizenship is insufficient, particularly in this case
where it is apparent that such an assertion would not withstand the
requirements of Fed. R. Civ. P. 11(b).
Because plaintiffs have
failed in their third attempt to assert diversity jurisdiction, the
Court does not have subject matter jurisdiction over their claims.
The Court will grant plaintiff’s request for an additional 90 days
to establish the citizenship of defendant and, if appropriate, file
a fourth amended complaint.
extensions,
and
will
not
The Court will not grant any further
grant
leave
to
file
any
additional
complaints if the new pleading is insufficient.
Accordingly, it is now
ORDERED:
1.
Defendant, Breitburn Florida, LLC’s Dispositive Motion To
Dismiss for Lack of Subject Matter Jurisdiction (Doc. #53) is
GRANTED, and plaintiffs’ Third Amended Complaint (Doc. #48) is
dismissed without prejudice for failure to sufficiently allege
subject-matter jurisdiction.
2.
Plaintiffs may file a Fourth Amended Complaint within
NINETY (90) DAYS from the date of this Opinion and Order if
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complete diversity of citizenship can be and is properly alleged.
Failure to file a fourth amended complaint within the allotted time
will result in the closing of the file without further notice.
DONE AND ORDERED at Fort Myers, Florida, this
June, 2011.
Copies:
Counsel of record
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9th
day of
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