Bright House Networks, LLC. v. Pinellas County

Filing 22

ORDER: Defendant Pinellas County's Motion to Dismiss Complaint for Declaratory Relief 10 is GRANTED as Bright House has failed to establish that this Court has subject matter jurisdiction over this action. The Clerk is directed to close the case. Signed by Judge Virginia M. Hernandez Covington on 8/6/2014. (KNC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
BRIGHT HOUSE NETWORKS, LLC,
Plaintiff,
v.

Case No. 8:14-cv-1237-T-33TBM

PINELLAS COUNTY,
Defendant.
_____________________________/
ORDER
This cause comes before the Court pursuant to Defendant
Pinellas County’s Motion to Dismiss Complaint for Declaratory
Relief (Doc. # 10), filed on June 24, 2014. Plaintiff Bright
House Networks, LLC filed a response in opposition to the
Motion on July 17, 2014. For the reasons stated below, the
Motion is granted as Bright House has failed to establish
that this Court has subject matter jurisdiction over this
action.
I.

Background
Bright House brought this action against Pinellas County

on the basis of diversity jurisdiction, pursuant to 28 U.S.C.
§ 1332, on May 27, 2014. (Doc. # 1). In its Complaint, Bright
House alleges that it is a party to a Right of Way Utilization
Permit containing an indemnification provision with Pinellas

County. (Id. at ¶ 3). The Permit relates to the construction
of a Bright House conduit on a bridge in Pinellas County.
(Id. at ¶ 8). According to Bright House, Pinellas County’s
bridge contractor “asserted claims against Pinellas County”
for breach of contract, common law indemnity, and breach of
the

Prompt

Payment

Act

relating

to

construction

of

the

aforementioned bridge. (Id. at ¶ 9). Pinellas County has since
“entered into a purported Coblentz agreement” regarding the
contractor’s claims without consulting Bright House. (Id. at
¶ 10).
Thus, Bright House seeks declaratory relief concerning
(1) the scope of an indemnification provision in a Right of
Way Utilization Permit to which both Bright House and Pinellas
County are parties; (2) whether Bright House has a duty to
defend Pinellas County; and (3) whether Bright House has
wrongfully refused to defend Pinellas County pursuant to the
Permit. (Id. at ¶ 16).
Pinellas County filed a Motion to Dismiss the Complaint
pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) on June 24,
2014, asserting, among other things, “the question of whether
there is complete diversity between the parties has not been
fully answered.” (Doc. # 10 at 8-9). Pinellas County contends
that the case “should be dismissed or, alternatively, Bright

2

House should be required to detail all layers of Bright
House’s

partners

and

members

and

their

respective

citizenships.” (Id. at 9-10)(emphasis in original). Bright
House filed a response in opposition on July 17, 2014.

(Doc.

# 16). This Court has reviewed the Motion and the response
thereto and is otherwise fully advised in the premises. As
this Court finds that Bright House has failed to establish
that this Court has jurisdiction over this action, the Court
will limit its discussion to Pinellas County’s Fed. R. Civ.
P. 12(b)(1) arguments.
II.

Legal Standard
Federal

courts

are

courts

of

limited

jurisdiction.

Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994).
“[B]ecause a federal court is powerless to act beyond its
statutory grant of subject matter jurisdiction, a court must
zealously insure that jurisdiction exists over a case, and
should

itself

raise

the

question

of

subject

matter

jurisdiction at any point in the litigation where a doubt
about jurisdiction arises.” Smith v. GTE Corp., 236 F.3d 1292,
1299 (11th Cir. 2001). Motions to dismiss for lack of subject
matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) may
attack jurisdiction facially or factually. Morrison v. Amway
Corp., 323 F.3d 920, 924 n.5 (11th Cir. 2003).

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A facial attack on the complaint requires “the court
merely to look and see if the plaintiff has sufficiently
alleged a basis for subject matter jurisdiction, and the
allegations in [the] complaint are taken as true for the
purposes of the motion.” Lawrence v. Dunbar, 919 F.2d 1525,
1529 (11th Cir. 1990) (quoting Menchaca v. Chrysler Credit
Corp., 613 F.2d 507, 511 (5th Cir. 1980)). Factual attacks,
in comparison, challenge “the existence of subject matter
jurisdiction in fact, irrespective of the pleadings. . . .”
Scarfo v. Ginsberg, 175 F.3d 957, 960 (11th Cir. 1999)(quoting
Lawrence, 919 F.2d at 1529). When the jurisdictional attack
is factual, the presumption of truthfulness afforded to a
plaintiff under Fed. R. Civ. P. 12(b)(6) does not attach.
Scarfo, 175 F.3d at 960. Because the very power of the Court
to hear the case is at issue, the Court is free to weigh
evidence outside the four corners of the complaint. Eaton v.
Dorchester Dev., Inc., 692 F.2d 727, 732 (11th Cir. 1982).
III. Discussion
Bright House initiated this action on the basis of
diversity jurisdiction. See 28 U.S.C. § 1332(a). In an effort
to establish complete diversity, Bright House alleges:
Plaintiff [Bright House] is a Delaware limited
liability company . . . [Bright House] is not a

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citizen of the State of Florida. [Bright House’s]
principal place of business is New York. None of
the members of [Bright House] are citizens of the
State of Florida.
Defendant
Pinellas
County
is
a
subdivision of the State of Florida.

political

(Doc. # 1 at ¶¶ 1-2). However, noting that Bright House failed
to properly allege its own citizenship, the Court entered the
following Order on May 29, 2014:
ENDORSED ORDER: Plaintiff attempts to allege
diversity of citizenship as the basis for the
Court's jurisdiction over this matter. However,
because the Complaint fails to properly allege
Plaintiff's citizenship, diversity has not been
definitively
established.
In
the
Complaint,
Plaintiff states that Defendant is a political
subdivision of the State of Florida and Plaintiff
is a Delaware limited liability company with its
principal place of business in New York and
summarily indicates that none of its members are
citizens of Florida. Diversity jurisdiction in a
case involving a limited liability company is based
on the citizenship of all members of the limited
liability company. Therefore, the Court directs
Plaintiff to file, on or before June 3, 2014, a
supplemental memorandum of law demonstrating that
proper grounds for diversity jurisdiction exists.
Failure to satisfy the Court that the requirements
for diversity jurisdiction exist may result in an
Order of dismissal for lack of jurisdiction.
(Doc. # 4)(internal citations omitted); see also Rolling
Greens MHP, L.P. v. Comcast SCH Holdings L.L.C., 374 F.3d

5

1020,

1022

(11th

Cir.

2004)

(“[A]

party

must

list

the

citizenships of all the members of the limited liability
company.”).
Bright House filed its supplemental memorandum regarding
citizenship on June 3, 2014, and stated:
[Bright House] has one member, the Time Warner
Entertainment Advance/Newhouse Partnership, a New
York general partnership, whose principal place of
business is in New York. This partnership consists
of two partners: Advance/Newhouse Partnership, a
New York General Partnership, whose principal place
of business is in New York, and Time Warner Cable
Enterprises, LLC, a Delaware limited liability
company, whose principal place of business is also
in New York. None of the partners of the
Advance/Newhouse Partnership and none of the
members of Time Warner Cable Enterprises, LLC, are
citizens of Florida.
(Doc. # 5).
Thereafter, Pinellas County filed the present Motion
arguing that a question still exists as to whether complete
diversity exists between the parties. (Doc. # 10 at 8-10).
Specifically, Pinellas County argues that “[w]ithout a full
disclosure

of

all

of

the

various

members

and

partners

involved, the Court cannot trace Bright House’s members’
citizenship
members

‘through

there

may

however
be’

many

and

6

layers

therefore

of

partners

cannot

or

determine

diversity

jurisdiction.”

(Id.

at

9)

(quoting

Scuotto

v.

Lakeland Tours, LLC, et al., No. 3:13-cv-1393-J-34JRK, 2013
U.S. Dist. LEXIS 173097, *4 (M.D. Fla. 2013)).
On July 18, 2014, this Court held a case management
hearing

and

discussed

with

the

parties

the

issue

of

jurisdiction. (Doc. # 17). At the hearing, Bright House cited
to a declaration by Bright House’s general counsel, which is
attached to its response in opposition to the Motion. (See
Doc. # 16-4). However, Bright House acknowledged that the
declaration fails to describe or identify the partners or
members of Time Warner Cable Enterprises, LLC or Advance/New
House Partnership.
Bright

House

represented

to

the

Court

that

with

additional time to research the issue, it could provide the
necessary information, and thus, the Court set August 4, 2014,
as the deadline for Bright House to provide the supplemental
information to establish its citizenship and demonstrate
complete diversity.
At this juncture, Bright House has failed to file a
supplemental memorandum, and the time to do so has passed.
This Court has granted Bright House ample opportunity to
demonstrate that this Court has diversity jurisdiction over
this action. As Bright House has failed to establish that

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complete diversity exists in this action, this Court grants
Pinellas County’s Motion. See Muscle Shoals Assocs., Ltd. v.
MHF Ins. Agency, Inc., 792 F. Supp. 1224, 1227 (N.D. Ala.
1992)

(“The

rules

[regarding

jurisdiction]

are

straightforward, and the law demands strict adherence to
them.”); Rolling Greens MHP, L.P., 374 F.3d at 1022 (the
burden of pleading diversity of citizenship is on the party
invoking federal jurisdiction).
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Defendant Pinellas County’s Motion to Dismiss Complaint
for Declaratory Relief (Doc. # 10) is GRANTED as Bright
House has failed to establish that this Court has subject
matter jurisdiction over this action.

(2)

The Clerk is directed to close the case.
DONE and ORDERED in Chambers in Tampa, Florida, this 6th

day of August, 2014.

Copies: All counsel of record

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