Bright House Networks, LLC. v. Pinellas County
Filing
28
ORDER: Plaintiff Bright House Networks, LLC's Motion for Reconsideration of Dismissal Order 23 is GRANTED. The Court's Order granting Defendant Pinellas County's Motion to Dismiss Complaint for Declaratory Relief 22 is hereby VACAT ED. The Clerk is directed to reinstate this action and all Motions that were pending at the time of dismissal. Pinellas County has until and including August 22, 2014, to file a supplemental memorandum to its reply 21 to Bright House's response in opposition to the Motion to Dismiss, limited to five pages.Signed by Judge Virginia M. Hernandez Covington on 8/19/2014. (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 Plaintiff
Bright House Networks, LLC’s Motion for Reconsideration of
Dismissal Order (Doc. # 23), filed on August 11, 2014. On
August
12,
2014,
this
Court
directed
Defendant
Pinellas
County to file a response by August 14, 2014, detailing its
position on the limited issue of whether this Court has
subject matter jurisdiction over this action. (Doc. # 24).
Pinellas County timely filed a response. (Doc. # 25). For the
reasons stated below, the Motion is granted.
I.
Background
Bright House initiated this action against Pinellas
County 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).
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).
Bright House brought this action before this Court on
the basis of diversity jurisdiction pursuant to 28 U.S.C. §
1332. In an effort to establish complete diversity, Bright
House alleged:
Plaintiff [Bright House] is a Delaware limited
liability company . . . [Bright House] is not a
citizen of the State of Florida. [Bright House’s]
principal place of business is New York. None of
2
the members of [Bright House] are citizens of the
State of Florida.
Defendant
Pinellas
County
is
a
subdivision of the State of Florida.
political
(Id. 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
1020,
1022
(11th
Cir.
2004)
3
(“[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).
Pinellas County filed a Motion to Dismiss 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 argued that
the case “should be dismissed or, alternatively, Bright House
should be required to detail all layers of Bright House’s
partners and members and their respective citizenships.” (Id.
4
at 9-10)(emphasis in original). Bright House filed a response
in opposition on July 17, 2014.
(Doc. # 16).
On July 18, 2014, this Court held a case management
hearing and discussed with the parties the issue of subject
matter 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
to
Dismiss.
(See
Doc.
acknowledged
that
the
identify
the
partners
#
16-4).
However,
declaration
fails
or
of
members
Bright
to
Time
House
describe
Warner
or
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 jurisdictional information. Therefore, 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. Bright House
failed to file a supplemental memorandum in the time provided
by the Court. Accordingly, on August 6, 2014, this Court
granted Pinellas County’s Motion to Dismiss and dismissed
this case as Bright House failed to establish that this Court
had subject matter jurisdiction over this action. (Doc. #
22).
5
Bright House filed the present Motion on August 11, 2014,
requesting that this Court reconsider its August 6, 2014,
Order. (Doc. # 23). Thereafter, Pinellas County filed a
response on August 14, 2014. (Doc. # 25). This Court has
reviewed the Motion and the response thereto and is otherwise
fully advised in the premises.
II.
Analysis
It is within the Court’s discretion to grant a motion
for reconsideration. Lussier v. Dugger, 904 F.2d 661, 667
(11th
Cir.
1990).
reconsideration
must
Arguments
be
balanced
achieve finality in litigation.
College
of
Osteopathic
in
favor
against
Id.
Medicine,
of
the
granting
desire
to
As stated in Florida
Inc.
v.
Dean
Witter
Reynolds, Inc., 12 F. Supp. 2d 1306, 1308 (M.D. Fla. 1998),
“[a] motion for reconsideration must demonstrate why the
court should reconsider its past decision and set forth facts
or law of a strongly convincing nature to induce the court to
reverse its prior decision.” Further, “in the interests of
finality
and
conservation
of
scarce
judicial
resources,
reconsideration is an extraordinary remedy to be employed
sparingly.” Lamar Adver. of Mobile, Inc. v. City of Lakeland,
189 F.R.D. 480, 489 (M.D. Fla. 1999).
6
This
Court
recognizes
three
grounds
to
justify
reconsideration of a prior order under Federal Rule of Civil
Procedure 59(e): “(1) an intervening change in controlling
law; (2) the availability of new evidence, and (3) the need
to correct clear error or manifest injustice.” Fla. College
of Osteopathic Med., Inc., 12 F. Supp. 2d at 1308. In deciding
a
motion
for
reconsideration,
“[t]his
Court
will
not
reconsider its judgment when the motion for reconsideration
fails to raise new issues but, instead, relitigates that which
the Court previously found lacking.” Ludwig v. Liberty Mut.
Fire Ins. Co., No. 8:03-cv-2378-T-17MAP, 2005 U.S. Dist.
LEXIS 37718, at *8 (M.D. Fla. Mar. 30, 2005). In addition, “a
motion for reconsideration is not the proper forum for the
party to vent dissatisfaction with the Court’s reasoning.”
Id. at *11 (internal citation and quotation omitted). Upon
review
of
the
present
Motion,
Bright
House’s
arguments
surround the manifest injustice that may occur if the Court
declines to reconsider its August 6, 2014, Order.
Bright
House
requests
that
this
Court
consider
the
supplemental memorandum attached to the Motion, which details
its citizenship, and vacate its previous Order dismissing
this action. Bright House admits that the August 4, 2014,
deadline
was
discussed
at
the
7
case
management
hearing
conducted July 18, 2014.
However, Bright House posits that
since its counsel appeared at the hearing by telephone and
the docket did not reflect the deadline, in the Clerk’s Minute
Entry (Doc. # 17) or otherwise, counsel failed to make a
notation in his records of the deadline to file a supplemental
memorandum. (Doc. # 23 at 2). Therefore, according to Bright
House, “[t]he unique circumstances surrounding the time of
[the] case management hearing and the setting of the deadline
resulted in the failure to timely file the Supplemental
Memorandum.” (Id.).
The Court’s initial inquiry must be whether Bright House
has established sufficient good cause to allow this Court to
consider the supplemental memorandum attached to the present
Motion, albeit, filed after the August 4, 2014, deadline. The
Court finds that Bright House has met this initial hurdle.
Although this Court does not require the parties to
diligently take notes during a hearing, it does expect that
the parties will be attentive to the discussions that take
place during the hearing and the deadlines that are imposed.
Nonetheless, this Court recognizes that the August 4, 2014,
deadline did not appear on the docket; specifically, the
Clerk’s Minute Entry (Doc. # 17). Therefore, under the narrow
circumstances presented in this case, the Court finds good
8
cause to consider the supplemental memorandum although Bright
House failed to adhere to the August 4, 2014, deadline.
In its response, Pinellas County contends that even
considering the supplemental memorandum, Bright House has
still
failed
properly
and
jurisdiction,
to
allege
therefore,
the
that
this
Court’s
Court
previous
has
Order
should remain intact. (Doc. # 25 at 1). Specifically, although
Bright House has “listed each member through its chain of
ownership and it appears that four of the entities are
corporations,”
allegations
of
Bright
these
House
has
failed
corporations’
to
support
principal
its
places
of
business. (Id.)(citing Fritz v. Am. Home Shield Corp., 751
F.2d 1152, 1153 (11th Cir. 1985)(“Determining a corporation’s
principal place of business may require a complex analysis of
business
relationships
among
a
hierarchy
of
corporate
entities. . . .”)).
To that end, Pinellas County urges this Court to apply
the “total activities” test to determine the principal place
of business for each listed corporation. (Doc. # 25 at
2)(citing Tai-Pan, Inc. v. Keith Marine, Inc. et al., No. 95338-CIV-J-20, 1997 WL 714898, at *2 (M.D. Fla. May 13, 1997)).
And,
“[i]f
the
‘total
activities’
of
any
of
the
four
corporations in Bright House’s chain of ownership would point
9
to a principal place of business in Florida, then Bright House
would
be
considered
a
citizen
of
Florida
and
diversity
jurisdiction would not exist.” (Doc. # 25 at 2).
In Tai-Pan, the defendants filed a motion to dismiss for
lack of subject matter jurisdiction arguing that diversity
jurisdiction did not exist as the defendants were Florida
residents and a Florida corporation and the plaintiff had its
principal place of business in Florida. Tai-Pan, 1997 WL
714898, at *2. The parties agreed that courts in the Eleventh
Circuit apply the “total activities” test to determine where
a corporation has its principal place of business. Id.
This test combines the “place of activities” test,
which focuses on production or sales activities,
and the “nerve center” test, which focuses on the
situs of the managerial and policy making functions
of the corporation. Courts will also apply six
additional
factors
to
help
determine
a
corporations's principal place of business: (1) the
nature of the activity, i.e., whether “active or
passive,”
“labor-intensive,”
or
“management
demanding”; (2) the number of locations where the
corporation operates; (3) the significance of the
activity as it relates to the corporate purpose and
the corporation as a whole; (4) the amount of
contact the corporation has with the community; (5)
the location of the corporation's nerve center; and
(6) whether corporate decisions are confined to the
nerve center or delegated to other locations.
Id. “After considering the argued facts and the applicable
legal
principles,”
the
Tai-Pan
court
concluded
that
the
plaintiff had not met its burden of providing that its
10
principal place of business is outside of Florida, as the
plaintiff “all but conceded that [its] day-to-day operations
. . . were conducted . . . in the State of Florida”. Id. at
*4.
To sufficiently allege diversity jurisdiction, Bright
House must demonstrate complete diversity of citizenship and
that the amount in controversy exceeds $75,000. See 28 U.S.C.
§ 1332. In order to demonstrate complete diversity, Bright
House must establish that its citizenship is diverse from the
citizenship
of
Pinellas
County.
To
sufficiently
allege
citizenship of a corporation, the state of incorporation as
well as the location of the principal place of business must
be stated. See 28 U.S.C. § 1332(c)(1).
As
stated
by
Pinellas
County,
in
its
supplemental
memorandum “Bright House has . . . listed each member through
its chain of ownership and it appears that four of the
entities are corporations.” (Doc. # 25 at 1). Bright House
has provided the principal place of business for each entity.
(See Doc. # 23-1). However, at this juncture, Pinellas County
requests
that
this
Court
engage
in
even
further
jurisdictional analysis and apply the “total activities” test
to
determine
where
the
listed
corporations
have
their
principal places of business. (Doc. # 25 at 2). The Court
11
notes that not only has Pinellas County failed to cite any
binding authority requiring this Court to engage in such an
analysis, it has failed to provide this Court with any factual
support demonstrating that if this Court was to apply the
“total
activities”
test,
the
enumerated
corporations’
principal places of business are within Florida.
Therefore, to the extent Pinellas County requests that
this Court apply the “total activities” test to the present
action, the Court grants Pinellas County until August 22,
2014, to file a supplemental memorandum to its reply to Bright
House’s response in opposition to the Motion to Dismiss,
limited
to
five
pages.
In
its
supplemental
memorandum,
Pinellas County is directed to further explain its position
as it relates to the applicability of the “total activities”
test and how, if at all, employing the test to the instant
action will demonstrate that diversity jurisdiction does not
exist.
III.
Conclusion
As there will be little, if any, prejudice to Pinellas
County if this Court grants Bright House’s requested relief,
as roughly two weeks have lapsed since this Court dismissed
this action, the Court grants Bright House’s Motion. Thus,
the
Court’s
Order
granting
Pinellas
12
County’s
Motion
to
Dismiss Complaint for Declaratory relief (Doc. # 22) is
vacated.
Pinellas County has until August 22, 2014, to file a
supplemental
memorandum
to
its
reply
to
Bright
House’s
response in opposition to the Motion to Dismiss addressing
the applicability of the “total activities” test to the
instant action. Thereafter, upon the filing of an appropriate
motion, the Court will allow Bright House to file a sur-reply
on the limited issue of subject matter jurisdiction.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)
Plaintiff
Bright
Reconsideration
of
House
Networks,
Dismissal
Order
LLC’s
(Doc.
Motion
#
23)
for
is
GRANTED.
(2)
The Court’s Order granting Defendant Pinellas County’s
Motion to Dismiss Complaint for Declaratory Relief (Doc.
# 22) is hereby VACATED.
(3)
The Clerk is directed to reinstate this action and all
Motions that were pending at the time of dismissal.
(4)
Pinellas County has until and including August 22, 2014,
to file a supplemental memorandum to its reply (Doc. #
21) to Bright House’s response in opposition to the
Motion to Dismiss, limited to five pages.
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DONE and ORDERED in Chambers in Tampa, Florida, this
19th day of August, 2014.
Copies: All counsel of record
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