Marion T LLC v. Formall Inc

Filing 4

OPINION AND ORDER re 1 STATE COURT COMPLAINT filed by Marion T LLC; 2 NOTICE OF REMOVAL filed by Thermoforming Machinery & Equipment Inc. Plaintiff ORDERED to file an Amended Complaint as outlined in Order by 1/11/2013. Defendant ORDERED to file an Amended Notice of Removal as outlined in Order by 1/11/2013. Signed by Magistrate Judge Roger B Cosbey on 12/28/12. (cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
MARION T, LLC,

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Plaintiff,
v.
THERMOFORMING MACHINERY &
EQUIPMENT, INC.,
Defendant.

CAUSE NO. 1:12-CV-456

OPINION AND ORDER
This case was removed to this Court from the Allen Superior Court by Defendant based
on diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). (Docket # 2.) The Notice of Removal
alleges that Plaintiff Marion T, LLC, “is an Indiana corporation with its principal office located
in North Vernon, Indiana.” (Notice of Removal ¶ 4.)
Defendant’s Notice of Removal, however, is inadequate because of the discrepancy
between the allegations in the Notice of Removal describing Plaintiff Marion T, LLC, as a
corporation (Notice of Removal ¶ 4) and the allegations in the Complaint indicating that Marion
T, LLC—as its business designation suggests—is an “Indiana limited liability company”
(Compl. ¶ 2). Because of this discrepancy, it is unclear whether Marion T, LLC, is a corporation
or a limited liability company.
If Marion T, LLC, is a corporation—which appears to be the less likely outcome—then
its citizenship has not been properly alleged. Although Defendants allege that Marion T, LLC, is
Indiana corporation with its principal office in Indiana (Notice of Removal ¶ 4), corporations
“are deemed to be citizens of the state in which they are incorporated and of the state in which
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they have their principal place of business,” N. Trust Co. v. Bunge Corp., 899 F.2d 591, 594 (7th
Cir. 1990) (emphases added); see 28 U.S.C. § 1332(c)(1). The term “principal place of
business” refers to the corporation’s “nerve center”—the place where a corporation’s officers
direct, control, and coordinate the corporation’s activities. Hertz Corp. v. Friend, 130 S. Ct.
1181, 1192 (2010). Thus, if Marion T, LLC, is a corporation, the Court must be apprised of the
state in which its principal place of business, rather than principal office, is located.
On the other hand, if Marion T, LLC, is in fact a limited liability company, then its
citizenship “for purposes of . . . diversity jurisdiction is the citizenship of its members,”
Cosgrove v. Bartolotta, 150 F.3d 729, 731 (7th Cir. 1998), and, therefore, the Court would have
to be advised of the citizenship of all the members of Marion T, LLC, to ensure that none of its
members share a common citizenship with the Plaintiff, Hicklin Eng’g, L.C. v. Bartell, 439 F.3d
346, 347 (7th Cir. 2006). This citizenship would then have to be “traced through multiple
levels” for those members of Marion T, LLC, who are a partnership or a limited liability
company, as anything less could result in a dismissal or remand for want of jurisdiction. Mut.
Assignment & Indem. Co. v. Lind-Waldock & Co., LLC, 364 F.3d 858, 861 (7th Cir. 2004).
Therefore, Defendant is ORDERED to supplement the record by filing an Amended
Notice of Removal on or before January 11, 2013, clarifying whether Plaintiff Marion T, LLC, is
a corporation or a limited liability company and making the appropriate citizenship allegations
pursuant to that clarification.
Moreover, along with the Notice of Removal, the Complaint is also inadequate. Under
Federal Rule of Civil Procedure 11(a), “[e]very pleading, written motion, and other paper must
be signed by at least one attorney of record in the attorney’s name—or by a party personally if

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the party is unrepresented.” FED. R. CIV. P. 11(a). Here, Marion T, LLC, is represented by H.
Joseph Certain. But Attorney Certain did not sign the Complaint as required by Rule 11. (See
Compl. 2.) As such, Plaintiff is ORDERED to file an Amended Complaint on or before January
11, 2013, that is signed by its attorney in accordance with Rule 11.
SO ORDERED.
Enter for this 28th day of December, 2012.
/S/ Roger B. Cosbey
Roger B. Cosbey,
United States Magistrate Judge

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