Moreno et al v. Youngquist Brothers, Inc. et al
Filing
89
OPINION AND ORDER denying as moot 71 Motion to dismiss Count V of the Plaintiff's Fourth Amended Complaint; granting 72 Motion to Dismiss the Fourth Amended Complaint; and denying 78 Motion for Hearing. Plaintiff Maria Ana Lopez is volunt arily dismissed as plaintiff. The Corrected Fourth Amended Complaint 84 is dismissed without leave to amend for lack of subject matter jurisdiction. The Clerk is directed to enter judgment accordingly and close the file. The Clerk is further directed to terminate all previously scheduled deadlines and pending motions. Signed by Judge John E. Steele on 8/23/2012. (SVC)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MARIA
ELENA
MORENO,
personal
representative of the Estate of Abel
G. Dominguez1,
Plaintiff,
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, Brietburn
Florida, LLC’s (Brietburn or defendant) Dispositive Motion to
Dismiss Plaintiffs’ Fourth Amended Complaint for Lack of Subject
Matter Jurisdiction (Doc. #72) and Motion to Dismiss Count V of
Plaintiff’s Fourth Amended Complaint for Failure to State a Claim
for Which Relief can be Granted (Doc. #71) both filed on September
20, 2011.
Plaintiff, Maria Elena Moreno, personal representative
of the Estate of Abel G. Dominguez (Moreno or plaintiff) filed a
response (Doc. #77) on October 17, 2011.
1
For the reasons set forth
The Corrected Fourth Amended Complaint voluntarily dismisses
all claims brought by Maria Ana Lopez, as guardian for A.A.D. and
A.D., minor children of the deceased (see Doc. #84, p. 20) and
therefore she has been removed from the caption of this case.
below, the Motion to Dismiss Plaintiff’s Fourth Amended Complaint
is granted and the Motion to Dismiss Count V is denied as moot.2
I.
This matter was first filed on August 28, 2009, by Maria Elena
Moreno, as
personal
representative
of
the Estate
of
Abel
G.
Dominguez and Maria Ana Lopez as guardian for the minor children of
the deceased, A.A.D. and A.D.
(Doc. #1.)
Following two motions to
dismiss for lack of subject matter jurisdiction (Docs. ##28, 29)
the Court dismissed the Complaint without prejudice for failure to
adequately plead the citizenship of both the plaintiff and the
defendant
thereby
failing
to
demonstrate
subject
matter
jurisdiction. (Doc. #32). Plaintiffs were given an opportunity to
amend the Complaint and did so on August 14, 2010.
(Doc. #36.)
Following two pending motions to dismiss for lack of subject matter
jurisdiction (Docs. ##37, 38), the Court issued an Order (Doc. #44)
directing a response which was filed on February 9, 2011.
#46.)
(Doc.
Therein, plaintiffs moved to amend their Complaint and
attached a proposed Third Amended Complaint.
(Doc. #46-2.)
The
Court noted that both the Amended Complaint and the proposed Third
Amended Complaint failed to properly allege the citizenship of the
individual
members
of
defendant
2
Breitburn
Florida,
LLC.
Plaintiff has also filed an Unopposed Motion for Oral Hearing
Pursuant to Local Rule 3.01(j) (Doc. #78). The Court finds an oral
hearing unnecessary. Therefore, this motion is denied.
-2-
Nevertheless, the Court granted leave to amend but warned that this
would be the final opportunity.
(Doc. #47.)
On June 9, 2011, plaintiff filed a Third Amended Complaint.
(Doc. #48.)
Following another motion to dismiss for lack of
subject matter jurisdiction (Doc. #53), the Court dismissed the
Third
Amended
Complaint
for
citizenship of the defendant.
failure
to
properly
allege
the
Despite its earlier warning, the
Court granted plaintiff’s request for an additional 90 days to
establish the citizenship of defendant and, if appropriate, to file
a fourth amended complaint.
In dismissing the Third Amended
Complaint, the Court admonished plaintiff that “[t]he Court will
not grant any further extensions, and will not grant leave to file
any additional complaints if the new pleading is insufficient.”
(Doc. #69, p. 3.)
On September 8, 2011, a Fourth Amended Complaint was filed.
(Doc. #70.)
exhibits
The Fourth Amended Complaint contained thirteen (13)
which
purported
to
demonstrate
that
adequately pled the citizenship of defendant.
plaintiff
has
On July 23, 2012,
the Court issued an Order (Doc. #83) requiring the plaintiff to
file a Corrected Fourth Amended Complaint noting the numerous
typographical errors, that it purported to have five counts yet
completely omitted count two, and that it was unclear whether
Youngquist Brothers, Inc. was intended as a defendant.
-3-
On July 30, 2012, a Corrected Fourth Amended Complaint was
filed.
(Doc. #84.)
In addition to correcting the numerous
typographical errors, the corrected document makes clear that
Youngquist Brothers, Inc. is not a defendant in this matter.
The
corrected document also drops Maria Ana Lopez, in her capacity as
guardian of minor children A.A.D. and A.D., as a plaintiff and the
previously asserted claim for loss of parental succor and support,
which the incorrect Fourth Amended Complaint alleged in Count V.
Accordingly, the motion to dismiss Count V of the Fourth Amended
Complaint is denied as moot.3
Accordingly, the Corrected Fourth Amended Complaint, now the
operative pleading in this matter, is brought solely by Maria Elena
Moreno,
in
her
capacity
as
the
duly
appointed
personal
representative of the Estate of Abel G. Dominguez against Breitburn
Florida, LLC.
The corrected Fourth Amended Complaint asserts the
following state law causes of action against defendant: wrongful
death (Count I); negligent retention, supervision and control by an
employer (Count II); and negligent selection/hiring/retention of
3
The Court notes that plaintiff failed to attach the
exhibits contained in the incorrect Fourth Amended Complaint to
corrected Fourth Amended Complaint. However, such documents
incorporated by reference and therefore will be considered by
Court. (See Doc. #84, ¶6.)
-4-
22
the
are
the
sub-contractor (Count III). Jurisdiction is premised on diversity,
pursuant to 28 U.S.C. 1332.4
II.
This brings the Court, at long last, to the subject motion in
which defendant alleges that despite numerous attempts, plaintiff
has again
failed
to adequately
plead
the
citizenship
of
the
parties.
Plaintiff asserts that its pleading is adequate and
contends that, if it is not, it should be provided with the
opportunity
to
conduct
discovery
to
properly
plead
diversity
jurisdiction.
As this Court has stated on numerous occasions, subject-matter
jurisdiction premised on diversity of citizenship under Title 28,
United States Code, Section 1332 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
4
Plaintiff also incorrectly asserts original jurisdiction by
stating that this matter falls under the United States Constitution
and because the alleged torts occurred on federal land. Plaintiff
does not identify which portion of the Constitution her claims fall
under, and the Court finds that there are no constitutional claims
asserted here. In addition, a tort which simply occurs on federal
land is not enough to invoke this Court’s original jurisdiction as
a case or controversy “arising under” federal law. 28 U.S.C. §
1331.
-5-
diversity between all plaintiffs and all defendants.”
Lincoln
Prop. Co. v. Roche, 546 U.S. 81, 89 (2005).
Although plaintiff asserts that the defendant, rather than
plaintiff, should be required to prove that its members are not
diverse from plaintiff, 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).
There is simply no legal basis
to place the burden on defendant to prove that this Court has
subject matter jurisdiction.
Plaintiff has not met her burden of adequately pleading both
her own citizenship and that of the defendant.
Plaintiff pleads
that she brings this lawsuit in her capacity as the personal
representative of the estate, which was “opened in Hendry County,
Florida.”
(Doc. #84, ¶84.)
Plaintiff seemingly attempts to
suggest that citizenship of a personal representative is based on
where the estate has “been opened.” This, of course, is incorrect.
Instead, as this Court has previously stated (see Doc. #32, p. 3),
the citizenship of a personal representative is deemed to be the
same State as the decedent, here Abel G. Dominguez.
See 28 U.S.C.
§ 1332(c)(2)(“the legal representative of the estate of a decedent
shall be deemed to be a citizen only of the same State as the
decedent . . .”).
The corrected Fourth Amended Complaint provides
absolutely no indication as to Abel G. Dominguez’s citizenship.
-6-
Without this information, the Court is without any basis to make a
determination that plaintiff is diverse from the defendant.
This
is fatal to the cause of action and the Court dismisses the Fourth
Amended Complaint for this basis.
Even if plaintiff had adequately pled the citizenship of the
decedent, the Court would still find that the Corrected Fourth
Amended Complaint fails to plead the citizenship of Breitburn
Florida, LLC.
The citizenship of a partnership is not determined
by the state of organization and principal place of business, as
with a corporation, but rather by the citizenship of each of its
general and limited partners.
See Carden v. Arkoma Assoc., 494
U.S. 185 (1990). Therefore, plaintiff’s allegations related to the
defendant’s and its various entities’ state of organization and
principal place of business are irrelevant.
Instead, 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).
Brietburn, Florida, LLC is a multi-layered entity.
According
to the Corrected Fourth Amended Complaint, Breitburn, Florida, LLC
is a limited liability company which is comprised and owned by
Breitburn Operating L.P.
Breitburn Operating L.P., in turn, is
comprised of Breitburn Operating GP, LLC, which is owned and
comprised of Breitburn Energy Partners, L.P.
It is alleged that
Breitburn Energy L.P. has four “managing members”, three of whom
-7-
are individuals and one of whom is a Limited Liability Company,
Breitburn GP, LLC.
Breitburn GP, LLC is managed by Breitburn
Management, LLC, which has seven “managing members” all of whom are
individuals.
(See Doc. #84, ¶¶9-11.)
The Court first notes that the Fourth Amended Complaint states
that “Breitburn Energy, L.P.” has four “managing members.” Limited
Partnerships are comprised, of course, of partners, rather than
members.
In that respect, the pleading is deficient.
Even
excusing the improper terminology, and assuming that the four
“members” are in fact, “partners”, the citizenship of this entity
remains deficiently pled.
According to the documents attached to
the Complaint, Breitburn Energy Partners LP is an entity that is
publicly traded on the NASDAQ, under the ticker symbol BBEP. (Doc.
#70-3, p. 1.)
Thus, the citizenship of all limited partners must
also be pled.
Plaintiff has admittedly failed to do so, and contends that
because the burden of establishing the citizenship of every member
or partner in a multi-layered entity is substantial, the Court
should not require plaintiff to plead the citizenship of the
defendant
with
such
specificity.
Several
courts
that
considered the issue have expressly rejected this argument.
have
See
e.g. Inergy Propane, LLC v. Case Lortz & Sons Mfg. Co., 2010 WL
3034196 (N.D. Ill. Aug. 2. 2010)(finding that the defendant, a
publicly traded
limited
partnership
-8-
with
approximately
42,000
limited partners/unit holders is a citizen of every state in which
any of its limited partners is a citizen); Weinstein v. Sleepy’s
Inc.,
2008
WL
1809340
at
*1
(D.N.J.
April
22,
2008)(citing
Belleville Catering Co. v. Champaign Mkt. Place, 350 F.3d 691,
693)(in evaluating the membership of an LLC, each membership layer
of a limited liability company must be analyzed to determine its
citizenship); Burford v. State Line Gathering System, LLC, 2009 WL
2487988 (W.D. La. Aug. 12, 2009)(“[i]f the members are themselves
partnerships, LLCs, corporations or other form of entity, their
citizenship must be alleged in accordance with the rules applicable
to that entity, and the citizenship must be traced through however
many layers of members or partners there may be.”); Moran v. Gulf
South
Pipeline
Co.,
L.P.,
2007
WL
276196
(W.D.
La.
Jan
25,
2007)(“[t]racing the layers of citizenship is often complex in
multi-tiered entities . . . but the difficulty of the task has not
persuaded the courts to afford different treatment to multi-tiered
entities”)(collecting cases).
courts for
to
do
otherwise
The Court joins these district
would
not
adequately
respect
the
principal that a federal court is a court of limited jurisdiction
which must be established by the party invoking jurisdiction.
Accordingly, it is now
ORDERED:
1. The Plaintiff’s Unopposed Motion for Oral Hearing Pursuant
to Local Rule 3.01(j) (Doc. #78) is DENIED.
-9-
2.
Defendant, Brietburn Florida, LLC’s Assented to Motion to
Dismiss Count V of Plaintiffs’ Fourth Amended Complaint for Failure
to State a Claim for Which Relief May be Granted [Dispositive as to
Count V Only] is DENIED AS MOOT.
3.
Maria Ana Lopez, as guardian for A.A.D. and A.D., minor
children of the deceased, is voluntarily dismissed as a plaintiff.
4. Defendant, Brietburn Florida, LLC’s Dispositive Motion to
Dismiss Plaintiffs’ Fourth Amended Complaint for Lack of Subject
Matter Jurisdiction (Doc. #72) is GRANTED and the Corrected Fourth
Amended Complaint (Doc. # 84) is DISMISSED.
No further amendments
will be allowed.
5.
The Clerk is directed to enter judgment accordingly and
close the file.
The Clerk is further directed to terminate all
previously scheduled deadlines and pending motions.
DONE AND ORDERED at Fort Myers, Florida, this
August, 2012.
Copies:
Counsel of record
-10-
23rd
day of
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