Kristena Bins-Turner, Back and 4th, LLC et al v. BFK Franchise Company, LLC

Filing 4

ORDERED: Plaintiffs shall have until July 21, 2014, to provide the Court with sufficient information so that it can determine whether it has jurisdiction over this action. To the extent that Plaintiffs intend to seek either a temporary restraining order or preliminary injunctive relief, Plaintiffs should review and comply with all requirements of the Federal Rules of Civil Procedure and Local Rules of this Court. See Order for details. Signed by Judge Marcia Morales Howard on 7/7/2014. (KAB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

KRISTENA BINS-TURNER, BACK AND
4th, LLC, and CREATIVE BRICK
BUILDERS, LLC,
Plaintiffs,

v.

Case No. 3:14-cv-769-J-34MCR

BFK FRANCHISE COMPANY, LLC,
Defendant.

_____________________________________/

ORDER
THIS CAUSE is before the Court sua sponte. Plaintiffs initiated the instant action on
July 1, 2014, by filing Plaintiffs’ Original Verified Complaint Requesting Declaratory and
Injunctive Relief (Doc. 1; Complaint). Upon review of Complaint, the Court is unable to
determine whether it has jurisdiction over this action. Federal courts are courts of limited
jurisdiction and therefore have an obligation to inquire into their subject matter jurisdiction.
See Kirkland v. Midland Mortgage Co., 243 F.3d 1277, 1279-80 (11th Cir. 2001). This
obligation exists regardless of whether the parties have challenged the existence of subject
matter jurisdiction. See Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir.
1999) (“[I]t is well settled that a federal court is obligated to inquire into subject matter
jurisdiction sua sponte whenever it may be lacking.”). “In a given case, a federal district
court must have at least one of three types of subject matter jurisdiction: (1) jurisdiction

under a specific statutory grant; (2) federal question jurisdiction pursuant to 28 U.S.C. §
1331; or (3) diversity jurisdiction pursuant to 28 U.S.C. § 1332(a).” Baltin v. Alaron Trading,
Corp., 128 F.3d 1466, 1469 (11th Cir. 1997).
In this case, Plaintiffs allege that this Court has diversity jurisdiction pursuant to 28
U.S.C. § 1332 as the amount in controversy exceeds the jurisdictional minimum of
$75,000.00, and there is diversity among the parties. Complaint ¶ 11.1 For a court to have
diversity jurisdiction pursuant to 28 U.S.C. § 1332(a), “all plaintiffs must be diverse from all
defendants.” Univ. of S. Ala., 168 F.3d at 412. Upon review of the allegations in the
Complaint, however, the Court is unable to determine the citizenships Plaintiffs and
Defendant.
In the Complaint, Plaintiffs allege that “Plaintiff Kristena Bins-Turner (“Bins-Turner”)
is an individual residing in Williamson County, Texas[.]” Complaint ¶ 7. To establish
diversity over a natural person, a complaint must include allegations of the person’s
citizenship, not where he or she resides. Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir.
1994). A natural person’s citizenship is determined by his or her “domicile,” or “the place of
his true, fixed, and permanent home and principal establishment . . . 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) (quotation and citation omitted). Accordingly, the assertion

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In addition to diversity of citizenship, Plaintiffs assert that “[t]he Court also has jurisdiction under” the
Declaratory Judgment Act, 28 U.S.C. § 2201. See Complaint ¶ 11. “Of course, it is well established that the
Declaratory Judgment Act does not, of itself, confer jurisdiction upon federal courts.” Stuart Weitzman, LLC v.
Microcomputer Res., Inc., 542 F.3d 859, 861-62 (11th Cir. 2008) (citations omitted); see also Fed. Election
Comm’n v. Reform Party of United States, 479 F.3d 1302, 1307 n.5 (11th Cir. 2007). “Rather, a suit brought
under the Act must state some independent source of jurisdiction.” Fed. Election Comm’n, 479 F.3d at 1307
n.5 (citation omitted).
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in the Complaint as to Bins-Turner’s residence is insufficient to establish her citizenship for
diversity purposes. See Taylor, 30 F.3d at 1367 (“Citizenship, not residence, is the key fact
that must be alleged in the complaint to establish diversity for a natural person.”); see also
Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989) (“‘Domicile’ is not
necessarily synonymous with ‘residence[.]’”).
Additionally, Plaintiffs allege that Plaintiffs Back and 4th, LLC (“Back and 4th”), and
Creative Brick Builders, LLC (“Creative Brick Builders”), are both Texas limited liability
companies with their principal place of business at 220 Sundance Pkwy, Suite 300, Round
Rock, Texas 78681. Complaint ¶¶ 8, 9. Further, Plaintiffs allege that Defendant BFK
Franchise Company, LLC (“BFK”), “is a Nevada limited liability company having its principal
place of business at 701 Market St., Suite 113, St. Augustine (St. Johns County), Florida
32095.” Id. ¶ 10. For purposes of establishing diversity jurisdiction, “a limited liability
company is a citizen of any state of which a member of the company is a citizen.” Rolling
Greens MHP, L.P. v. Comcast SCH Holdings L.L.C., 374 F.3d 1020, 1022 (11th Cir. 2004));
see also Mallory & Evans Contractors & Engineers, LLC v. Tuskegee Univ., 663 F.3d 1304,
1305 (11th Cir. 2011). Therefore, to sufficiently allege the citizenship of a limited liability
company, a plaintiff must allege the citizenship of each of the limited liability company’s
members. See Mallory & Evans, 663 F.3d at 1305; Rolling Greens, 374 F.3d at 1022.
Although Plaintiffs have alleged that Bins-Turner “is the sole and managing member of” Back
and 4th and Creative Brick Builders, see Complaint ¶ 7, without knowledge of Bins-Turner’s
citizenship, this allegation is insufficient to disclose Back and 4th’s and Creative Brick
Builders’ citizenships. Additionally, without knowledge of the identity and citizenship of

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BFK’s members, the Court is unable to determine whether complete diversity exists between
Plaintiffs and Defendant. See Underwriters at Lloyd’s London v. Osting-Schwinn, 613 F.3d
1079, 1092 (11th Cir. 2010) (remanding case in which party invoking the court’s diversity
jurisdiction did not disclose the identity and citizenship of each member of an unincorporated
entity); see also D.B. Zwirn Special Opportunities Fund, L.P. v. Mehrotra, 661 F.3d 124 (1st
Cir. 2011) (requiring plaintiff LLC to identify its members and their respective citizenship);
Meyerson v. Showboat Marina Casino Partnership, 312 F.3d 318 (7th Cir. 2002) (instructing
district court to remand action to state court where defendant partnership’s jurisdictional
allegations repeatedly failed to “tell us the identity and citizenship of the partners in the two
entities that own [defendant partnership]”). Indeed, without such information, the Court
cannot trace BFK’s members’ citizenship “through however many layers of partners or
members there may be.” See Meyerson v. Harrah’s E. Chi. Casino, 299 F.3d 616, 617 (7th
Cir. 2002); see also D.B. Zwirn Special Opportunities Fund, L.P., 661 F.3d at 126-27 (“If
even one of Zwirn’s members is another unincorporated entity, the citizenship of each of that
member’s members (or partners, as the case may be) must then be considered.”); Zambelli
Fireworks Mfg Co., Inc. v. Wood, 592 F.3d 412, 420 (3d Cir. 2010).
Further, upon review of the Complaint, the Court notes that Plaintiffs seek injunctive
relief and assert that “irreparable injury” to Plaintiffs “is so imminent that notice and a hearing
on an application for preliminary injunction is impracticable if not impossible.” Complaint ¶
93.2 In certain circumstances, the Court “may issue a temporary restraining order without

2

However, as summons has been issued (Doc. 2), it appears that Plaintiffs intend to serve Defendant
with the Complaint.
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written or oral notice to the adverse party or its attorney . . . .” Rule 65(b)(1), Federal Rules
of Civil Procedure (Rule(s)). However, the Court “may issue a preliminary injunction only on
notice to the adverse party.” Rule 65(a)(1). Nevertheless, the Court notes that Plaintiffs
have not filed a motion seeking either type of expedited relief.
In the event that Plaintiffs intend to seek entry of either a temporary restraining order
or a preliminary injunction in this action, the Court notes that Plaintiffs have failed to comply
with the procedural prerequisites for obtaining either form of relief. As such, the Court takes
this opportunity to remind Plaintiffs of some of the requirements set forth in Rule 65, and
Rules 4.05 and 4.06, Local Rules, United States District Court, Middle District of Florida
(Local Rule(s)), which govern the entry of temporary restraining orders and preliminary
injunctions. As noted supra, Rule 65(a) states that the Court may issue a preliminary
injunction only on notice to the opposing party. See Fed. R. Civ. P 65(a). Likewise, Local
Rule 4.06(a) dictates that notice must be given at least fourteen days in advance of a hearing
on the matter. See Local Rule 4.06(a). Moreover, Local Rule 4.06(b) requires the party
applying for a preliminary injunction to comply with certain procedural requirements set forth
in Local Rule 4.05(b), which governs the procedural requirements for temporary restraining
orders. See Local Rule 4.06(b)(1). For example, a request for injunctive relief must be
made by separate, properly titled motion. See Local Rule 4.05(b)(1). Additionally, the
motion must be accompanied by affidavits or a verified complaint establishing the threat of
irreparable injury. See Local Rule 4.05(b)(2).3 Local Rule 4.05(b) also requires that the

3

Plaintiffs have attached to the Complaint a Verification, executed by Bins-Turner. See Complaint at

24.
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motion describe precisely the conduct sought to be enjoined, set forth facts on which the
Court can reasonably determine the amount of security to be posted, be accompanied by
a proposed form of the order, and contain a supporting legal memorandum. See Local Rule
4.05(b)(3). In addition, the legal memorandum in support of the motion must address four
specific factors, including the likelihood of success, the threatened irreparable injury, the
potential harm to the opposing parties, and the public interest, if any. See Local Rule
4.05(b)(4). Accordingly, to the extent that Plaintiffs intend to seek either a temporary
restraining order or preliminary injunctive relief, Plaintiffs should review and comply with all
requirements of the Rules and Local Rules of this Court.
Accordingly, it is ORDERED:
1.

Plaintiffs shall have until July 21, 2014, to provide the Court with sufficient

information so that it can determine whether it has jurisdiction over this action.
2.

To the extent that Plaintiffs intend to seek either a temporary restraining order

or preliminary injunctive relief, Plaintiffs should review and comply with all requirements of
the Federal Rules of Civil Procedure and Local Rules of this Court.
DONE AND ORDERED in Jacksonville, Florida on this 7th day of July, 2014

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Copies:
Counsel of Record

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