Montgomery Bank, N.A. v. Alico Road Business Park, LP et al
Filing
5
ORDER dismissing for lack of subject-matter jurisdiction 1 Complaint filed by Montgomery Bank, N.A. without prejudice to filing an Amended Complaint within 7 days of this Order. Signed by Judge John E. Steele on 12/2/2013. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MONTGOMERY BANK, N.A.
Plaintiff,
v.
Case No: 2:13-cv-802-FtM-29UAM
ALICO ROAD BUSINESS PARK,
LP, FRANZ J. ROSINUS, GOLD
COAST FIRE PROTECTION, LLC,
FERGUSON ENTERPRISES, INC.,
WORLD ELECTRIC SUPPLY, INC.,
GCM CONTRACTING SOLUTIONS,
INC., TRANE U.S., INC., CFS
FACILITY
SERVICES,
LLC,
ALICO ROAD BUSINESS PARK
CONDOMINIUM
ASSOCIATION,
INC., LEE ROAD EXTENSION
ASSOCIATION, INC., FORMOSA
129
INDUSTRIAL
PARK
COMMUNITY ASSOCIATION, INC.,
VR LABS, INC., and FLORIDA
DEPARTMENT OF REVENUE,
Defendants.
ORDER
This matter comes before the Court on review of the Complaint
(Doc. #1) filed on November 15, 2013.1 Subject-matter jurisdiction
is premised on the presence of diversity between the parties.
(Id., ¶¶ 2-15.)
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.
1
28 U.S.C. § 1332(a);
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).
Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1261 (11th Cir.
2000).
The Court is satisfied that the amount in controversy is
adequately pled.
Plaintiff
alleges
that
it
is
a
national
association
transacting business in Lee County, Florida, with a headquarters
and main office in Sikeston, Missouri.
(Doc. #1, ¶ 2.) 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, N.A. v. Schmidt, 546 U.S. 303, 318 (2006).
As the location of the main office is identified, plaintiff’s
citizenship is adequately pled.
Plaintiff alleges that Alico Road Business Park, LP is a
Florida limited partnership doing business in Lee County, Florida.
(Doc. #1, ¶ 3.)
Plaintiff does not identify the citizenship of
the general and/or limited members of the partnership, and a
limited partnership itself is not a citizen for jurisdictional
purposes. Carden v. Arkoma Assocs., 494 U.S. 185, 189, 195 (1990).
Therefore, the Court cannot determine the citizenship of Alico
Road Business Park, LP, or that diversity of jurisdiction is
present.
Plaintiff
identifies
defendants
resident of Collier County, Florida.
Franz
J.
Rosinus
(Doc. #1, ¶ 4.)
as
a
“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.”
2
Newman-Green, Inc. v.
Alfonzo-Larrain, 490 U.S. 826, 828 (1989).
not the equivalent of pleading domicile.
Pleading residency is
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
(11th
2002)(internal quotation marks and citations omitted).
Cir.
Plaintiff
has failed to properly allege the citizenship of the individually
named defendant.
Plaintiff alleges that Gold Coast Fire Protection, LLC is a
Florida limited liability company doing business in Lee County,
Florida, and defendant CFS Facility Services, LLC a/k/a CFS Roofing
Services, LLC is a Florida limited liability corporation doing
business in Lee County, Florida.
(Doc. #1, ¶¶ 5, 10.)
Plaintiff
does not identify the members or the citizenship of the individual
members of the limited liability company, and a limited liability
company is a citizen of any state of which a member is a citizen.
Rolling Greens MHP, L.P. v. Comcast SCH Holdings L.L.C., 374 F.3d
1020 (11th Cir. 2004).
Plaintiff
Virginia
alleges
corporation
that
doing
Ferguson
business
Enterprises,
in
Lee
Inc.
County,
is
a
Florida;
defendant World Electric Supply, Inc. is a Delaware corporation
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doing business in Lee County, Florida; defendant GCM Contracting
Solutions, Inc. is a Florida corporation doing business in Lee
County,
Florida;
defendant
Trane
U.S.,
Inc.
is
a
Delaware
corporation doing business in Lee County, Florida; defendant Lee
Road Extension Association, Inc. is a Florida not for profit
corporation;
defendant
Formosa
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Industrial
Park
Community
Association, Inc. is a Florida not for profit corporation; and
defendant VR Labs, Inc. is a Delaware for profit corporation doing
business in Lee County.
(Doc. #1, ¶¶ 6-9, 11-14.)
A corporation
is a citizen of both the state of its incorporation and the state
where it has its principal place of business.
1332(c)(1).
28 U.S.C. §
The principal place of business is determined by the
“nerve center” test.
Hertz Corp. v. Friend, 559 U.S. 77 (2010).
The citizenship of the defendant corporations is not adequately
pled for diversity purposes.
Plaintiff also names the Florida Department of Revenue, an
agency of the State of Florida as a defendant.
(Doc. #1, ¶ 15.)
A State is not a “citizen” for purposes of diversity jurisdiction,
although a political subdivision of the State is a citizen of the
State for diversity purposes.
693, 717 (1973).
Moor v. Alameda County, 411 U.S.
A state agency may be sued by a citizen of
another state if the agency “is invested with the power to sue and
be
sued,
powers.”
and
possesses
other
generally
recognized
corporate
Id. at 717-718; Dep't of Health & Rehabilitative Servs.,
State of Fla. v. Davis, 616 F.2d 828, 833 (5th Cir. 1980)(citations
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omitted).
In this case, the Department of Revenue appears to be
empowered to sue and be sued in its own capacity, see Fla. Stat.
§ 20.21,2 although there are no allegations asserting that the
Florida Department of Revenue has waived its Eleventh Amendment
immunity from suit in federal court, see, e.g., Camm v. Scott, 834
F. Supp. 2d 1342, 1348-49 (M.D. Fla. 2011).
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:
The Complaint (Doc. #1) is dismissed for lack of subjectmatter
jurisdiction
without
prejudice
to
filing
an
Amended
2nd
day of
Complaint within SEVEN (7) DAYS of this Order.
DONE AND ORDERED at Fort Myers, Florida, this
December, 2013.
Copies:
Counsel of record
2
The Court will not address the issue of venue at this stage
of the proceedings. See, e.g., Swinscoe v. Fla. Dep’t of Revenue,
320 So. 2d 11, 12 (Fla. 4th DCA 1975).
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