Middleton v. BJ's Wholesale Club, Inc. et al

Filing 13

ORDERED: Defendant BJ's Wholesale Club, Inc. shall have until October 14, 2016, to provide the Court with sufficient information so that it can determine whether it has diversity jurisdiction over this action. See Order for details. Signed by Judge Marcia Morales Howard on 9/23/2016. (MHM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

PHYLLIS MIDDLETON,
Plaintiff,
v.

Case No. 3:16-cv-1040-J-34JRK

BJ’S WHOLESALE CLUB, INC., a foreign
Corporation, 8046 PHILIPS HIGHWAY, LLC,
a foreign limited liability company, and JOHN
DOE,
Defendants.
_____________________________________/
ORDER
THIS CAUSE is before the Court sua sponte. 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, 1279-1280 (11th Cir. 2001); see
also Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994). 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”).
On August 15, 2016, Defendant BJ’s Wholesale Club, Inc. (BJ’s) filed Defendant,
BJ’s Wholesale Club, Inc.’s, Notice of Removal to United States District Court (Doc. 1;
Notice of Removal), asserting that the Court has diversity jurisdiction over this action
pursuant to 28 U.S.C. § 1332. See Notice of Removal at 3. BJ’s asserts that diversity

-1-

jurisdiction is proper because this is an action between citizens of different states, and
the amount in controversy exceeds $75,000. Id. at 3. In the Notice of Removal, BJ’s
asserts that Plaintiff Phyllis Middleton is “a citizen of the state of Florida.” Id. at 5. In
addition, BJ’s alleges that it is a “Delaware for-profit corporation,” with “headquarters” in
Massachusetts. Id. at 6. Last, BJ’s identifies Defendant 8046 Philips Highway, LLC as
both a “foreign limited liability company” and a “Delaware corporation with its principal
place of business in Bedford, New York.” Id. This allegation is nonsensical as 8046
Philips Highway, LLC cannot be both a corporation and a limited liability company. If,
despite its name, 8046 Philips Highway, LLC is actually a corporation, then BJ’s has
properly alleged its citizenship.1 However, to the extent 8046 Philips Highway, LLC is a
limited liability company, as it appears to be, then it is unclear to the Court from the filings
whether BJ’s has properly identified its citizenship.2
For the purposes of establishing diversity jurisdiction, an unincorporated business
association or entity, such as a general or limited partnership or a limited liability company,
is not a “citizen” under 28 U.S.C. § 1332(a) in its own right. See Xaros v. U.S. Fidelity &
Guaranty Co., 820 F.2d 1176, 1181 (11th Cir. 1987). Instead, “the citizenship of its
members is determinative of the existence of diversity of citizenship.” Id.; see also

1 A corporation “‘shall be deemed to be a citizen of any State by which it has been incorporated and of the
State where it has its principal place of business.’” Hertz Corp. v. Friend, 559 U.S. 77, 80 (2010) (quoting
28 U.S.C. § 1332(c)(1)) (emphasis omitted).
2

Although Plaintiff has not yet served 8046 Philips Highway, LLC, the Court must still consider its citizenship
in determining whether diversity jurisdiction exists in this case. See New York Life Ins. Co. v. Deshotel,
142 F.3d 873, 883 (5th Cir. 1998) (“A non-resident defendant cannot remove an action if the citizenship of
any co-defendant, joined by the plaintiff in good faith, destroys complete diversity, regardless of service or
non-service upon the co-defendant.”) (collecting cases). The Court does disregard the citizenship of the
fictitious defendant, John Doe. See 28 U.S.C. § 1441(b)(1) (“In determining whether a civil action is
removable on the basis of the jurisdiction under section 1332(a) of this title, the citizenship of defendants
sued under fictitious names shall be disregarded.”).

-2-

Underwriters at Lloyd’s, London v. Osting-Schwinn, 613 F.3d 1079, 1089 (11th Cir. 2010)
(“General partnerships, limited partnerships, joint stock companies, and unincorporated
membership associations are all treated as citizens of every state of which any partner or
member is a citizen.”) (internal quotation omitted). Therefore, as BJ’s correctly observed,
in order to sufficiently allege the citizenship of an unincorporated business entity, a party
must list the citizenships of all the members of that entity. See Rolling Greens MHP, L.P.
v. Comcast SCH Holdings L.L.C., 374 F.3d 1020, 1022 (11th Cir. 2004) (per curiam).
Here, BJ’s alleges that “[b]ased on filings with the Florida Department of State,
Division of Corporations, 8046 Philips Highway LLC has only one member, Richard
Kassis.” See Notice at 6. However, the Court has reviewed the filings to which BJ’s
refers and while they potentially identify one member of the limited liability company, they
do not establish that the identified person is 8046 Philips Highway, LLC’s only member.
See Notice, Ex. I. Kassis is identified in places as the “manager” or the “owner,” but to
establish diversity jurisdiction, the Court needs information regarding the citizenship of all
the members of a limited liability company, not just the managing members. See Rolling
Greens MHP, L.P., 374 F.3d at 1022. Moreover, BJ’s asserts that based on these
documents Kassis “appears to be a citizen of the state of New York.” See Notice at 7.
However, the documents include nothing more than an address for Kassis and thus, do
not reveal his citizenship. See Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994)
(“Citizenship, not residence, is the key fact that must be alleged . . . to establish diversity
for a natural person.”); see also Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30,
48 (1989) (“‘Domicile’ is not necessarily synonymous with ‘residence[.]’”). As such, the

-3-

Court concludes that the information BJ’s has provided is insufficient to establish 8046
Philips Highway, LLC’s citizenship.
In light of the foregoing, the Court will give BJ’s an opportunity to provide the Court
with additional information to establish 8046 Philips Highway LLC’s citizenship, and this
Court’s diversity jurisdiction over the instant action. Accordingly, it is
ORDERED:
Defendant BJ’s Wholesale Club, Inc. shall have until October 14, 2016, to provide
the Court with sufficient information so that it can determine whether it has diversity
jurisdiction over this action.
DONE AND ORDERED in Jacksonville, Florida on September 23, 2016.

lc11
Copies to:
Counsel of Record

-4-