BRANCH BANKING AND TRUST COMPANY v. GREENBRIAR ESTATES LP et al

Filing 3

ORDER directing Plaintiff to file amended complaint not later than 2/15/2013. Ordered by Judge Hugh Lawson on 2/1/2013. (nbp)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION
BRANCH BANKING & TRUST COMPANY,
Plaintiff,
Civil Action 7:13-CV-12 (HL)
v.
GREENBRIAR ESTATES, LP; HUGH W.
ROBERTS; and ALAN G. PAULK SR.,
Defendants.
ORDER
On January 31, 2013, Plaintiff filed this matter in the Valdosta Division of the
United States District Court for the Middle District of Georgia, alleging diversity as
the basis for federal jurisdiction. Because federal courts are courts of limited
jurisdiction, they Aalways have an obligation to examine sua sponte their jurisdiction
before reaching the merits of any claim.@ Kelly v. Harris, 331 F.3d 817, 819 (11th Cir.
2003). When a plaintiff files a claim in federal court it is generally the plaintiff=s
burden to allege the specific facts necessary to establish jurisdiction. Morrison v.
Allstate Indem. Co., 228 F.3d 1255, 1273 (11th Cir. 2000).
Plaintiff, a citizen of North Carolina, alleges that jurisdiction is proper in this
Court because there is diversity of citizenship of the parties and the amount in
controversy is greater than $75,000. However, Plaintiff has not properly pled
citizenship of any of the Defendants.

For purposes of establishing diversity, Plaintiff alleges that Defendant Roberts
is a Georgia resident, and that Defendant Paulk is a Georgia resident. There is no
statutory definition of citizen with regard to natural persons. Federal courts hold that
an individual=s citizenship is equivalent to Adomicile@ for purposes of diversity
jurisdiction. McCormick v. Anderholt, 293 F.3d 1254, 1257 (11th Cir. 2002). Domicile
requires one=s physical presence within the state with the intent to make the state
one=s A>true, fixed, and permanent home and principal establishment.=@ Id. at 1257-58
(quoting Mas v. Perry, 489 F.2d 1396, 1399 (5th Cir. 1974)). A person may reside in
one place but be domiciled in another. Miss. Band of Choctaw Indians v. Holyfield,
490 U.S. 30, 48, 109 S. Ct. 1957, 1608 (1989). A complaint merely alleging
residency, as opposed to state citizenship or domicile, is insufficient to invoke
diversity jurisdiction. Duff v. Beaty, 804 F.Supp. 332, 334 (N.D.Ga. 1992). As Plaintiff
has pled Defendants Roberts and Paulk’s place of residence, rather than citizenship,
it has not properly pled citizenship for purposes of a diversity action.
Plaintiff alleges that Defendant Greenbriar Estates, LP is a Georgia limited
partnership. For purposes of 28 U.S.C. ' 1332, the citizenship of a limited
partnership, as an artificial, unincorporated entity, is determined by the citizenship of
each of the partners or members composing the organization. See Carden v.
Arkoma Assoc., 494 U.S. 185, 110 S.Ct. 1015; Rolling Greens MHP, L.P. v.
Comcast SCH Holdings L.L.C., 374 F.3d 1020 (11th Cir. 2004). As Plaintiff has not

2

pled the citizenship of the members of the limited partnership, it has not properly
pled citizenship for purposes of a diversity action.
As a result of these deficiencies, this Court is unable to ascertain whether
complete diversity of citizenship exists and, therefore, the complaint fails to satisfy
the prerequisites of subject matter jurisdiction. However, the Court is of the opinion
that Plaintiff should be allowed to amend to correct the deficiencies noted.
Accordingly, the Plaintiff shall have until February 15, 2013 in which to file an
amended complaint that conforms to the findings of this Order. Failure to plead the
necessary jurisdictional prerequisites in a timely manner will result in dismissal for
lack of jurisdiction.
SO ORDERED, this the 1st day of February, 2013.

s/ Hugh Lawson
HUGH LAWSON, SENIOR JUDGE
mbh

3