Cadence Bank, N.A. v. Bennett et al

Filing 10

ORDER dismissing 1 Verified Complaint without prejudice to filing an Amended Complaint within 14 days to properly allege subject-matter jurisdiction; denying as moot 9 motion to dismiss. Signed by Judge John E. Steele on 4/10/2013. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
CADENCE BANK, N.A., formerly known
as SUNCOAST NATIONAL BANK, N.A.,
Plaintiff,
vs.

Case No.

2:13-cv-145-FtM-29SPC

MICHAEL S. BENNETT, individually,
DIANE M. BENNETT, individually,
DIANE M. BENNETT, as trustee of the
Diane M. Bennet revocable trust
u/a/d/July 28, 2008,
Defendants.
___________________________________
ORDER
This matter comes before the Court on a jurisdictional review
of the Verified Complaint (Doc. #1) filed on February 27, 2013.
The Complaint was filed alleging subject-matter jurisdiction based
on the presence of diversity jurisdiction under Section 1332, “and
other applicable law1”.

(Doc. #1, ¶ 5.)

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).

Plaintiff references an obligation by

defendants in excess of $800,000, therefore the Court is satisfied

1

No claims are brought under federal law, therefore it is
unclear what other applicable law provides the basis for
jurisdiction.

that the face of the Complaint alleges the requisite amount in
controversy.
“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.

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

Plaintiff alleges that it is a national association with its
principal place of business in Birmingham, Alabama.
1.)

(Doc. #1, ¶

This is inadequate to allege the citizenship of plaintiff

bank.
“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).
residency is not the equivalent of pleading domicile.

Pleading
Molinos

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

-2-

(11th Cir. 2002)(internal quotation marks and citations omitted).
Plaintiff alleges that defendant M. Bennett is an individual
“residing

or

doing

business

in”

Florida,

D.

Bennett

is

an

individual “residing or doing business in” Florida, and the Trust
is a revocable trust with its res in Florida.

(Doc. #1, ¶¶ 2-4.)

The residency of the individually named defendants is insufficient
to establish their citizenship.
Accordingly, it is now
ORDERED:
1.

The Verified Complaint (Doc. #1) is dismissed without

prejudice to filing an Amended Complaint within FOURTEEN (14) DAYS
of this Order to properly allege subject-matter jurisdiction.
2.

Defendants’ Motion to Dismiss the Complaint (Doc. #9) is

denied as moot.
DONE AND ORDERED at Fort Myers, Florida, this
April, 2013.

Copies:
Counsel of record

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