BMO Harris Bank N.A. v. Anderson et al

Filing 45

ORDER dismissing 28 Second Amended Complaint for lack of subject-matter jurisdiction without prejudice to filing a Third Amended Complaint within 7 days; denying as moot 37 Motion for summary judgment. Signed by Judge John E. Steele on 3/11/2014. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
BMO
HARRIS
BANK
N.A.,
successor-by-merger to M&I
Marshall & Ilsley Bank,
Plaintiff,
v.

Case No: 2:12-cv-631-FtM-29CM

ROBERT
M.
ANDERSON,
an
individual,
ROBERT
M.
ANDERSON, as Trustee for the
Robert M. Anderson Trust
dated
12/5/05,
DANIEL
VENEIGH, an individual, and
MARGARET
VENEIGH,
an
individual,
Defendants.
ORDER
This matter comes before the Court on review of the Second
Amended Verified Complaint for Foreclosure (Doc. #28) filed on
October 9, 2013.1

Subject-matter jurisdiction is premised on the

presence of diversity of jurisdiction between the parties.
¶¶ 1, 7.)

(Id.,

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).

1

The

If the Court determines “at any time” that it lacks subjectmatter jurisdiction, the Court must dismiss the case.
Fed. R.
Civ. P. 12(h)(3).

Court is satisfied as to the amount in controversy based on the
allegations that the Note in question was for $150,000, before
interest.

(Doc. #28, ¶¶ 11, 13, 17.)

Plaintiff

alleges

that

it

is

a

national

association

transacting business in Lee County, Florida with its main office
and principal place of business in Cook County, Illinois.
#28, ¶ 2.)

(Doc.

“All national banking associations shall, for the

purposes of all other actions by or against them, be deemed
citizens of the States in which they are respectively located.”
28 U.S.C. § 1348.

For diversity jurisdiction purposes, a national

bank is a citizen of the State designated in its articles of
association as its main office.
546 U.S. 303, 318 (2006).

Wachovia Bank, N.A. v. Schmidt,

As currently pled, the allegations of

citizenship are insufficient.
Plaintiff

further

alleges

that

defendant

Anderson

is

an

individual “residing” in Cape Coral, Florida, and that defendants
Daniel Veneigh and Margaret Veneigh are individuals “residing” in
Lee County, Florida.

(Doc. #28, ¶¶ 3, 5-6.)

“In order to be a

citizen of a State within the meaning of the diversity statute, a
natural person must both be a citizen of the United States and be
domiciled within the State.”

Newman-Green, Inc. v. Alfonzo-

Larrain, 490 U.S. 826, 828 (1989).
equivalent of pleading domicile.

Pleading residency is not the

Molinos Valle Del Cibao, C. por

A. v. Lama, 633 F.3d 1330, 1341 (11th Cir. 2011); Corporate Mgmt.

2

Advisors, Inc. v. Artjen Complexus, Inc., 561 F.3d 1294, 1297 (11th
Cir. 2009); Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir.
1994).

“A person’s domicile is the place of his true, fixed, and

permanent home and principal establishment, and to which he has
the intention of returning whenever he is absent therefrom.”
McCormick

v.

Aderholt,

293

F.3d

1254,

1257-58

(11th

2002)(internal quotation marks and citations omitted).

Cir.

Plaintiff

has failed to properly allege the citizenship of the individually
named defendants.

Therefore, no diversity of jurisdiction is

alleged.
Plaintiff

alleges

that

defendant

Anderson

Trust

is

a

revocable trust organized and existing under the laws of Florida,
and defendant Anderson is the Trustee of the Trust.

A revocable

trust is set up by a settlor who retains the right to recall or
end the trust at any time.

Fla. Stat. § 736.0603; MacIntyre v.

Wedell, 12 So. 3d 273, 274 (Fla. 4th DCA 2009).
a

real

party

to

the

controversy

for

“[A] trustee is

purposes

of

diversity

jurisdiction when he possesses certain customary powers to hold,
manage, and dispose of assets for the benefit of others.”
Sav. Ass'n v. Lee, 446 U.S. 458, 464 (1980).

Navarro

Beneficiaries having

a material interest in the litigation may also have to be joined
and could destroy jurisdiction.

E.g., Tick v. Cohen, 787 F.2d

1490, 1494 (11th Cir. 1986)(if judgment could adversely affect the
absent

beneficiaries’

interests,

3

they

would

be

joined

if

feasible).

To

the

extent

that

the

Anderson

Trust

is

an

unincorporated business trust, citizenship would be based on the
citizenship of the shareholders.

Crook-Petite-El v. Bumble Bee

Seafoods LLC, 502 F. App’x 886,887 (11th Cir. 2012).

Without

additional information, the Court cannot determine whether the
citizenship of the Anderson Trust is adequately pled.
Plaintiff

will

be

provided

an

opportunity

to

state

the

presence of federal jurisdiction pursuant to 28 U.S.C. § 1653.
Accordingly, it is now
ORDERED:
1. The Second Amended Complaint (Doc. #28) is dismissed for
lack of subject-matter jurisdiction without prejudice to
filing a Third Amended Complaint within SEVEN (7) DAYS of
this Order.
2. Plaintiff’s

Motion

for

Summary

Judgment

and

Default

11th

day of

Judgment (Doc. #37) is DENIED as moot.
DONE AND ORDERED at Fort Myers, Florida, this
March, 2014.

Copies:
Counsel of record

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