Amegy Bank National Association v. DB Private Wealth Mortgage, Ltd., et al

Filing 29

ORDER granting 19 Motion to dismiss. Plaintiff will have 14 days from the date of this order to file a second amended complaint. Failure to do so may result in dismissal without further notice signed by Judge Roy B. Dalton, Jr. on 9/27/2012. (AKJ)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
AMEGY BANK NATIONAL
ASSOCIATION,
Plaintiff,
vs.

Case No. 2:12-cv-243-UA-SPC

DEUTSCHE BANK CORPORATION, DB
PRIVATE WEALTH MORTGAGE LTD.,
and DEUTSCHE BANK ALEX.BROWN,
Defendants.
ORDER
This cause is before the Court on Defendants’ Motion to Dismiss and
Incorporated Memorandum of Law, filed on July 16, 2012 (Doc. No. 19), Plaintiff’s
Response, filed on July 30, 2012 (Doc. No. 23), and Defendants’ Reply in Support of
their Motion to Dismiss, filed on August 23, 2012. (Doc. No. 28.) After a careful review
of the parties’ submissions and the applicable law, the Court finds the Motion due to be
GRANTED.
BACKGROUND
On May 2, 2012, Plaintiff filed a Complaint alleging unlawful conversion of a
security interest held in the partnership stock of a hotel. (Doc. No. 1, pp. 9-10.) On
June 11, 2012, Defendants moved the United States Magistrate Judge for an extension
of time to respond to the Plaintiff’s Complaint, noting that they had informed Plaintiff that
neither Deutsche Corporation nor Deutsche Bank Alex Brown were registered to do
business in Florida. (Doc. No. 5, p. 2.) Plaintiff’s Counsel agreed to investigate the
matter and moved the Court for an additional twenty-one days to amend its Complaint.

Id. The Magistrate granted Defendants’ request for an extension of time, but denied
Plaintiff’s request for the same as premature. (Doc. No. 6, p. 2.) The Magistrate noted,
however, that Plaintiff could move the Court to file an amended complaint if and when it
was deemed necessary. Id.
On July 2, 2012, Plaintiff filed the First Amended Original Complaint, without
requesting leave from the Court. (Doc. No. 13.) On July 16, 2012, Defendants moved
to dismiss. (Doc. No. 19.)
APPLICABLE STANDARDS
Under Rule 12(h)(3) of the Federal Rules of Civil Procedure, a district court must
“inquire into subject-matter jurisdiction sua sponte whenever it may be lacking.” Cadet
v. Bulger, 377 F.3d 1173, 1179 (11th Cir. 2004).

Federal courts are of limited

jurisdiction and must therefore, examine their subject matter jurisdiction, even without a
challenge from a party. See Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410
(11th Cir. 1999). The burden of establishing federal subject matter jurisdiction rests with
the party bringing the claim. Sweet Pea Marine, Ltd. v. APJ Marine, Inc., 411 F.3d
1242, 1247 (11th Cir. 2005).
DISCUSSION
Plaintiff asserts that the Court has subject matter jurisdiction pursuant to 28
U.S.C. § 1332. (Doc. No. 13, p. 2.)
In order to assert jurisdiction based on diversity of the parties, plaintiffs must
affirmatively plead the citizenship of the individual defendants. FED. R. CIV. P. 12(h)(3).
Federal jurisdiction based on diversity of citizenship requires complete diversity and that
the amount in controversy exceeds 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

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(11th Cir. 2000). Complete diversity requires that the citizenship of each plaintiff must
be diverse from the citizenship of every defendant. Lincoln Prop. Co. v. Roche, 546
U.S. 81, 82 (2005). “In a case with multiple plaintiffs and multiple defendants, the
presence in the action of a single plaintiff from the same State as a single defendant
deprives the district court of original diversity jurisdiction over the entire action.” Exxon
Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 553 (2005).
The allegations of the Complaint are inadequate to permit the Court to determine
whether complete diversity of citizenship exists. Plaintiff has failed to properly plead the
citizenship of the parties in the case.

Corporate entities have dual citizenship for

purposes of diversity and plaintiffs must affirmatively plead both the state of
incorporation and the corporation’s principal place of business. 28 U.S.C. § 1332(c);
Wash. Mut. Bank v. Schoenlaub, No. 3:07-cv-460-J-32MCR, 2007 WL 2572105, at *2
(M.D. Fla. Sept. 4, 2007); Builder’s Res., Inc. v. Coreslab Structures (Conn), Inc., 538 F.
Supp. 2d 324, 327 (D. Mass. 2008) (“[E]very circuit to have considered the question is
in accord: a plaintiff must specifically plead both the state of incorporation and the
principal place of business of every corporate party.”).

Plaintiff has not identified

Defendants’ principal place of businesses or their states of incorporation. (Doc. No. 13,
pp. 1-2.)
In addition, the Amended Complaint states (id., p. 1) that Plaintiff is a national
banking association licensed and doing business in Texas with a branch office in
Houston, Texas. Plaintiff does not identify the location of its main office, designated in
its articles of association.

Wachovia Bank v. Schmidt, 546 U.S. 303, 318 (2006)

(concluding that for the purposes of diversity jurisdiction, a national banking association

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is a citizen of its “location,” meaning “the State designated in its articles of association
as its main office,” not in every state where it has branch offices.).
Without this information, the Court is unable to determine whether complete
diversity of the parties exists and therefore, is unable to address the merits of
Defendants’ Motion to Dismiss. See Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d at
410 (“Simply put, once a federal court determines that it is without subject matter
jurisdiction, the court is powerless to continue.”).
CONCLUSION
Accordingly, it is hereby ORDERED AND ADJUDGED:
1) Defendants’ Motion to Dismiss and Incorporated Memorandum of Law (Doc.
No. 19) is GRANTED.
2) Plaintiff’s First Amended Original Complaint (Doc. No. 13) is DISMISSED
WITHOUT PREJUDICE.
3) As this is Plaintiff’s second attempt at pleading proper jurisdiction, Plaintiff will
have one final opportunity to amend its Complaint within fourteen (14) days from the
date of this Order. Failure to do so may result in a dismissal with prejudice of this action
in its entirety.
DONE AND ORDERED in Chambers in Fort Myers, Florida, on September 27,
2012.

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Copies:
Parties and Counsel of Record

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