Burgess et al v. Vfinity LLC et al
Filing
63
ORDER dismissing 2 Complaint for lack of subject-matter jurisdiction without prejudice to filing an Amended Complaint within 7 days of this Order; denying as moot 56 Motion to Dismiss; denying as moot 57 motion to dismiss; denying as moot 61 Motion to extend time. Signed by Judge John E. Steele on 3/7/2017. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
KEN
L.
BURGESS,
an
individual, SANDI BURGESS,
an individual, and LIGHTSHIP
ENTERPRISE,
a
Wyoming
corporation,
Plaintiffs,
v.
Case No: 2:17-cv-19-FtM-99MRM
VFINITY
LLC,
a
Florida
limited liability company,
VOYAGER HEALTH TECHNOLOGIES,
a Nevada corporation, ALEX
ELIASHEVSKY, an individual,
and MURRAY POLISCHUK, an
individual,
Defendants.
ORDER
This matter comes before the Court on review of the Complaint
(Doc. #2) filed on November 18, 2015. 1 Subject-matter jurisdiction
is premised on the presence of a diversity of citizenship between
the parties.
(Id., ¶¶ 1-11.)
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.
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).
§ 1332(a); Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1261
(11th Cir. 2000).
The
District
Complaint
Court
was
for
initially
the
filed
Central
in
District
the
of
United
Utah,
States
but
was
transferred to the Middle District of Florida, Fort Myers Division,
on January 11, 2017.
(Doc. #42.)
Prior to transfer, the Utah
District Court entered an Order to Show Cause on January 3, 2017,
stating
that
plaintiffs
had
inadequately
pled
diversity
jurisdiction and set forth the areas where the Complaint was
lacking in this regard.
(Doc. #40.)
Specifically, the Utah
District Court requested that plaintiffs provide a response to the
following information: (1) the citizenship of the members of
Vfinity LLC, (2) the state of incorporation and principal place of
business for all corporate parties, (4) the citizenship of the
natural
persons,
and
(4)
good
faith
allegations
citizenship of John Does 1-5. (Doc. #40.)
response (Doc. #41) on January 5, 2017.
as
to
the
Plaintiffs filed a
The Utah District Court
did not address whether plaintiffs’ response was adequate, and
transferred the case to this Court on January 11, 2017. 2
#42.)
(Doc.
Upon review of plaintiffs’ response (Doc. #41), this Court
2
The Utah District Court’s transfer order (Doc. #42) reflects
that the Court held a hearing on Defendants’ Motion to Dismiss or
Transfer Venue (Doc. #13) on January 10, 2017, but there is no
indication that the Utah District Court was satisfied with or even
addressed subject-matter jurisdiction.
2
finds that plaintiff has now adequately addressed the citizenship
allegations
as
to
the
corporate
parties
and
the
John
Doe
defendants, but fails in all other respects.
Although the Utah District Court stated that natural persons
are citizens of the state in which they are domiciled (Doc. #40 at
2), plaintiffs Ken L. Burgess and Sandi Burgess continue to allege
that they “reside in Utah.”
(Doc. #41, ¶ 3.)
“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.
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 Cir. 2002)
(internal quotation marks and citations omitted).
Plaintiffs have
failed to properly allege the citizenship of the individuallynamed plaintiffs.
Therefore, the Court cannot determine the
citizenship of these plaintiffs, or that diversity of citizenship
is present.
3
Likewise, plaintiffs allege that defendants Alex Eliashevsky
and Murray Polischuk, “reside in Florida and/or Nevada.”
#41, ¶ 3.)
(Doc.
Plaintiffs must properly allege the citizenship of the
individually-named defendants, by pleading domicile.
Furthermore, plaintiffs do not identify the citizenship of
individual members of the defendant limited liability company.
Rather, plaintiffs’ response to the Court’s request to provide
supplemental information regarding citizenship of the LLC members
states that the members of Vfinity LLC are “believed to be Alex
Eliashevsky, who resides in Florida and/or Nevada, and Murray
Polishcuk, who resides in Florida and/or Nevada.”
1.)
(Doc. #41, ¶
A limited liability company is a citizen of any state of which
a member is a citizen. Thermoset Corp. v. Building Materials Corp.
of America, --- F.3d ---, 2017 WL 816224, *2 (11th Cir. Mar. 2,
2017) (citing Rolling Greens MHP, L.P. v. Comcast SCH Holdings
L.L.C., 374 F.3d 1020 (11th Cir. 2004) (noting that the pleadings
are required to provide the citizenship of each LLC member to
invoke
the
District
Court’s
diversity
jurisdiction)).
Here,
plaintiffs have only alleged the residency of the LLC members, and
not their domicile; therefore, the Court cannot determine the
citizenship of Vfinity LLC, or that diversity of jurisdiction is
present.
Plaintiffs will be provided one final opportunity to
4
state the presence of federal jurisdiction pursuant to 28 U.S.C.
§ 1653. 3
The Court also notes that the Complaint (Doc. #2) is a shotgun
pleading as it contains multiple counts where each count adopts
the allegations of all preceding counts, which is one of the bases
for dismissal cited in the pending motions to dismiss.
56, 57.)
each
one
(Docs. ##
“The typical shotgun complaint contains several counts,
incorporating
by
reference
the
allegations
of
its
predecessors, leading to a situation where most of the counts
(i.e., all but the first) contain irrelevant factual allegations
and legal conclusions.”
Strategic Income Fund, L.L.C. v. Spear,
Leeds & Kellogg Corp., 305 F.3d 1293, 1295 (11th Cir. 2002).
The
Eleventh Circuit has consistently frowned upon shotgun pleadings
such as the one presented herein, and shotgun pleadings “exact an
intolerable toll on the trial court’s docket.”
117 F.3d 1258, 1263 (11th Cir. 1997).
Cramer v. Florida,
See also Davis v. Coca-Cola
Bottling Co. Consol., 516 F.3d 955, 979 n.54 (11th Cir. 2008)
(collecting
cases).
Accordingly,
3
the
Eleventh
Circuit
has
Plaintiffs’ response (Doc. #41) states that “John Does 1-5
are believed to reside in Florida and/or Nevada (though no such
have been identified to date as no discovery has been completed).”
The Court is satisfied with this response at this stage in the
proceedings, but plaintiffs shall move to amend the Complaint to
adequately allege these individuals’ citizenship once the John
Does’ identifies are discovered, or otherwise move for their
dismissal if unknown.
5
established that when faced with a shotgun pleading, a district
court should require the parties to file an amended pleading rather
than allow such a case to proceed to trial.
F.3d 1075, 1130 (11th Cir. 2001).
Byrne v. Nezhat, 261
In amending the Complaint,
plaintiffs should take the opportunity to correct this deficiency.
Accordingly, it is now
ORDERED:
1.
matter
The Complaint (Doc. #2) is dismissed for lack of subjectjurisdiction
without
prejudice
to
filing
an
Amended
Complaint within SEVEN (7) DAYS of this Order.
2.
Defendant Eliashevsky’s Motion to Dismiss (Doc. #56) is
DENIED as moot.
3.
Defendant Vfinity, LLC’s Motion to Dismiss (Doc. #57) is
DENIED as moot.
4.
Plaintiffs’ Unopposed Motion for an Extension to File
Their Response to Defendants’ Motions to Dismiss (Doc. #61) is
DENIED as moot.
DONE AND ORDERED at Fort Myers, Florida, this
March, 2017.
Copies: Counsel of record
6
7th
day of
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