Visalus, Inc. v. Then et al

Filing 5

ORDERED that Plaintiff is directed to file, within 30 days from the date of this Order, an amended complaint. 1 Complaint filed by Visalus, Inc. Signed by Judge William T. Moore, Jr on 2/1/13. (wwp)

FILED
U.S. DSTRT
SAY
THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF GEORGIJ03 FEB SAVANNAH DIVISION

VISALUS, I C.,

5.

('c:

LE SO. 01ST. OF OA

Plaintiff,
CASE NO. CV413-028

V.

AMBER THEN and OCEAN AVENUE
LLC,
Defendants.

ORDER

Befor the Court is Plaintiff ViSalus, Inc.'s Motion
for Temporry Restraining Order and Preliminary Injunction.
(Doc. 3.) In the motion, Plaintiff seeks to prohibit
Defendants from recruiting and soliciting Plaintiff's
distributors. (Id. at 11.) Because the Court is unable to
determine whether it has jurisdiction over this case,
Plaintiff is DIRECTED to file, within thirty days from the
date of tlis order, an amended complaint that includes the
citizenshi> of each party to this case, specifically the
names and icitizenships of each member of Ocean Avenue LLC.
When filing its amended complaint, Plaintiff should refrain
from incorporating by reference any portion of their
initial complaint. The amended complaint should be a
stand-alone filing that independently contains all of
Plaintiff's factual allegations and claims for relief. The

Court

DEF RS

until it

is

ruling on any pending motion in this case

satisfied of its jurisdiction to entertain this

dispute.
BACKGROUND
This case stems from Defendant Amber Then's alleged
violation of two non-solicitation agreements and a noncompete agreement she entered into with Plaintiff. (Doc. 3
at 1.) In November 2010, Defendant Then became a
distributor with Plaintiff—a network marketing company that
sells weight management, nutritional, and energy products.
(Doc. 1

I 17.) At that time, Defendant Then signed two

non-solicitation agreements. These non-solicitation
agreements limited Defendant Then's ability to solicit or
recruit a y of Plaintiff's distributors for one year
following er departure. (Doc. 1 Exs. A, B.)
In December 2012, Plaintiff suspended Defendant Then
after it believed she was working for a direct competitor,
Defendant Ocean Avenue.

Defendant Then requested to be

reinstated by Plaintiff.

(Doc. 1 11 30, 31.) On December

14, 2012, Plaintiff reinstated Defendant Then after she
signed a non-compete agreement. (Doc. 1 Ex. C.) The noncompete agreement prohibited her from working for Defendant
Ocean Avenue for a period of one year following her
employment with Plaintiff. (Doc. 1 ¶ 31.) According to
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Plaintiff, on December 28, 2012, Defendant Then resigned
and immedi tely began to work for Defendant Ocean Avenue.
(Id. ¶ 33j Plaintiff contends that Defendant Then's
actions violate the non-compete agreement and that as a
result, Plaintiff has suffered and will continue to suffer
substantia business losses. (Id. ¶ 36.) Based on these
grounds, Plaintiff filed a verified complaint and the
current motion requesting the entry of a temporary
restraining order and preliminary injunction against
Defendant Then and Defendant Ocean Avenue.
ANALYSIS

In ths case, the Court need not address the merits of
Plaintiff

's

motion because the Court is unable to conclude

that this case falls within its jurisdiction.' The party

' Additiorally, the Court notes that in order for a
temporary estraining order to be issued without written or
oral notice to the adverse party, Federal Rule of Civil
Procedure 5(b) (1) requires that
(a) specific facts in an affidavit or a verified
complaint clearly show that immediate and
irreparable injury, loss, or damage will result
to the movant before the adverse party can be
heard in opposition; and
(b) the movant's attorney certifies in writing
any efforts made to give notice and the reasons
why it should not be required.
While Plaintiff has filed a verified complaint, the record
contains no written certification from Plaintiff's counsel

invoking this Court's diversity jurisdiction bears the
burden of adequately pleading complete diversity between
the parties. See 28 U.S.C. § 1332; Ray v. Bird & Son Asset
Realization Co., 519 F.2d 1081, 1082 (5th Cir.

1971)2 ("The

burden of pleading diversity of citizenship is upon the
party invoking federal jurisdiction, and if jurisdiction is
properly c allenged, that party also bears the burden of
proof.") For the purposes of diversity jurisdiction, a
limited liability company ("LLC") is a citizen of any state
in which any of its members is a citizen. Rolling Greens
MHP, L.P.

V.

Comcast SCH Holdinc. s L.L.C., 374 F. 3d 1020,

1021-22 (11th Cir. 2004) . The Eleventh Circuit Court of
Appeals has been explicit in addressing the proper method
to sufficiently allege the citizenship of an LLC: 'a party
must list the citizenships of all the members of the
limited 1ibi1ity company." Id. at 1022.
In t1is case, Plaintiff has failed to provide a list
of the individual members, along with their citizenship, of
Defendant Ocean Avenue. Rather, Plaintiff has merely
provided the general and factually unsupported conclusion

of any eforts made to give notice to the adverse party or
reasons wh such notice should not be required.
2
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th
Cir. 1981) (en banc), the Eleventh Circuit adopted as
binding precedent all decisions of the former Fifth Circuit
handed down prior to October 1, 1981.
4

that comp1te diversity exists because "no members of Ocean
Avenue are citizens of Georgia."

(Doc. 1 ¶ 4.)

Such

general allegations, however, are insufficient for
Plaintiff

to carry its burden of establishing complete

diversity between the parties. See Ray 519 F.2d at 1082.
CONCLUSION
For

the foregoing reasons, Plaintiff is

DIRECTED

to

file, within thirty days from the date of this order, an
amended complaint that includes the citizenship of each
party to this case, specifically the names and citizenships
of each nember of Ocean Avenue LLC. When filing its
amended complaint, Plaintiff should refrain from
incorporating by reference any portion of their initial
complaint. The amended complaint should be a stand-alone
filing that independently contains all of Plaintiff's
factual allegations and claims for relief. The Court
DEFERS ruling on any pending motion in this case until it

is satisfied of its jurisdiction to entertain this dispute.
SO ORDERED this

I

day of February 2013.

WILLIAM T. MOORE, JR/
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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