Melton v. Gary Indiana City of, et al

Filing 212

OPINION AND ORDER granting 209 Motion for Extension of Time to Complete Jurisdictional Discovery. The Court EXTENDS this deadline to 02/28/2020. No further requests to extend this deadline will be granted. At the direction of the District Court, the Court EXTENDS the Plaintiff's deadline to show cause why this matter should not be dismissed for lack of subject matter jurisdiction to 02/28/2020. No further requests to extend this deadline will be granted. Finally, the Court notes that it will look favorably upon a motion for a protective order to allay privacy concerns, should that be necessary to facilitate supplying the Court with proper allegations regarding the citizenship(s) of the relevant parties. Signed by Magistrate Judge Joshua P Kolar on 01/29/2020. (jat) Modified on 1/30/2020 to indicate "Opinion" and Order(kjp).

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
GIA MELTON, individually and as mother
and next friend of G.R., a minor,
Plaintiff,
v.
CITY OF GARY, INDIANA, et al.,
Defendants.

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CAUSE NO.: 2:17-CV-93-TLS-JPK

OPINION AND ORDER
This matter is before the Court on Plaintiff’s Unopposed Motion to Extend Time in Which
to Supplement Jurisdiction [DE 209], filed on January 22, 2020. For the following reasons, the
motion is granted. However, the Court warns Plaintiff that failure to submit an adequate
supplemental jurisdictional statement and filing showing cause, pursuant to Chief Judge
Theresa L. Springmann’s orders, may result in dismissal or remand of this matter.
On August 28, 2019, Chief Judge Springmann ordered Plaintiff to file, on or before
September 20, 2019, a supplemental jurisdictional statement identifying: (1) the citizenship on
February 28, 2017, the date the Complaint was filed, of (a) Plaintiff, (b) Angenette C. Earls, (c) PK
Management, LLC, (d) NSA III Associates, LLC, (e) Maxwell’s Glass, and (f) the Neal Company,
Inc.; (2) the citizenship on April 20, 2017, the date of the First Amended Complaint, of NSA III
Limited Partnership; (3) the citizenship on June 5, 2017, the date of the Second Amended
Complaint, of Associated Materials, Inc.; and (4) the citizenship on July 20, 2017, the date of the
Third Amended Complaint, of Residential Management Company, LLC. (Aug. 28, 2019 Op.
& Order 4, ECF No. 158).
The August 28, 2019 Order provided citations to cases explaining how a party must allege
the citizenship(s) of the relevant entities. The Order noted that “[c]itizenship of a natural person is

determined by domicile, not by residence.” Id. at 3 (citing Dakuras v. Edwards, 312 F.3d 256, 258
(7th Cir. 2002) (emphasis added); Heinen v. Northrop Grumman Corp., 671 F.3d 669, 670 (7th
Cir. 2012); Guar. Nat’l Title Co. v. J.E.G. Assocs., 101 F.3d 57, 58-59 (7th Cir. 1996)). The Order
further explained that “[a] corporation is a citizen of every state and foreign state in which it has
been incorporated and the state or foreign state where it has its principal place of business.” Id.
(citing 28 U.S.C. § 1332(c)(1); Hertz Corp. v. Friend, 559 U.S. 77, 92-93 (2010)). Finally, the
Order explained that “[b]oth a limited liability company and a partnership take the citizenship of
its members,” and “[i]f the members of the limited liability company or partnership are themselves
limited liability companies or partnerships, the Plaintiff must also plead the citizenship of those
members as of the date the Complaint was filed.” Id. at 4 (citing Belleville Catering Co. v.
Champaign Mkt. Place, LLC, 350 F.3d 691, 692 (7th Cir. 2003); Thomas v. Guardsmark, LLC,
487 F.3d 531, 534 (7th Cir. 2007)).
On September 9, 2019, Plaintiff filed a supplemental jurisdictional statement containing
insufficient allegations regarding the citizenship(s) of the above-named parties. Specifically,
Plaintiff alleged the residences of Plaintiff and Defendant Earls, rather than their domiciles, and
further alleged that Defendant PK Management, LLC was a “Delaware limited liability company
with its principal place of business in Sherman Oaks, California,” Defendant NSA III Associates,
LLC was a “Delaware limited liability company with its principal place of business in Sherman
Oaks, California,” Defendant Maxwell’s Glass was an “Indiana limited liability company with its
principal place of business in Merrillville, Indiana,” Defendant NSA III Limited Partnership was
an “Indiana domestic limited partnership with its principal place of business in Sherman Oaks,
California,” and Defendant Residential Management Company, LLC was an “Indiana limited

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liability company with its principal place of business in Valparaiso, Indiana.” 1 (Suppl.
Jurisdictional Statement ¶¶ 1-5, 7, 9, ECF No. 159).
On September 10, 2019, Chief Judge Springmann ordered Plaintiff to file an amended
supplemental jurisdictional statement correcting these deficiencies. (Sept. 10, 2019 Op. & Order,
ECF. No. 160). The Court reiterated that Plaintiff was required to “allege her own domicile and
that of Angenette C. Earls.” Id. at 1. The Court further reiterated that Plaintiff was required to
identify “the members and the citizenship of each member of PK Management, LLC, NSA III
Associates, LLC, and Residential Management Company, LLC” and “the partners and the
citizenship of each partner of NSA Limited Partnership.” Id. at 2.
There has since been considerable activity on the docket concerning the issue of subject
matter jurisdiction. On September 23, 2019, the Court granted a motion for an extension of time
for Plaintiff to file her supplemental jurisdictional statement, extending the deadline to October 10,
2019. On October 16, 2019, the Court granted a second motion for an extension of time for Plaintiff
to file her supplemental jurisdictional statement, extending the deadline to October 31, 2019. On
November 1, 2019, the Court granted a third motion for an extension of time for Plaintiff to file
her supplemental jurisdictional statement, extending the deadline to November 22, 2019. This
order noted that future motions to extend the deadline would be viewed with disfavor. The
November 22, 2019 deadline passed with no filing from Plaintiff.
On December 5, 2019, Chief Judge Springmann ordered Plaintiff to show cause, on or
before December 18, 2019, why this case should not be dismissed for lack of subject matter
jurisdiction. On December 10 and 11, 2019, Plaintiff filed three motions to compel at Docket
Entries 196, 198, and 200. The sole request for relief contained in the motions filed at Docket

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The Court notes that Defendants Maxwell’s Glass and Residential Management Company, LLC are no longer parties
to this action.

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Entries 196 and 198 was that the Court extend Plaintiff’s deadline to file her supplemental
jurisdictional statement to November 22, 2019, a date that had already passed by the time the
motions were filed. (Mot. Compel 3, ECF No. 196; Am. Mot. Compel 2, ECF No. 198). The
amended motion to compel filed at Docket Entry 200 contained what appeared to be Plaintiff’s
actual request for relief, that the Court compel Defendants PK Management, LLC and NSA III
Limited Partnership to provide a list of the names and citizenship(s) of their respective members
and general partners. (Am. Mot. Compel 2, ECF No. 200). On December 12, 2019, Plaintiff filed
a motion for an extension of time in which to conduct jurisdictional discovery, in light of the
pending motions to compel and the difficulties faced by Plaintiff in obtaining the necessary
information regarding the identity of Defendants’ members and partners and the citizenship(s) of
these entities. On December 13, 2019, the Court granted Plaintiff’s motion for an extension of time
in which to conduct jurisdictional discovery, extending the deadline to January 22, 2020. The Court
also extended the show cause deadline to January 22, 2020.
On January 8, 2020, the Court held a telephonic status conference to discuss the pending
motions to compel. During this conference, the Court denied the motions to compel without
prejudice and advised the parties that any additional requests for action by the Court on this issue
should be filed as a written motion. On January 16, 2020, at the request of the parties, the Court
held another telephonic status conference, during which the parties requested direction from the
Court regarding the supplemental jurisdictional statement. The parties proposed providing the
Court with an affidavit such as the one filed at Docket Entry 211 to satisfy the Court’s jurisdictional
concerns. The Court advised the parties that a request for action by the Court on this issue should
be made through written motion or request for a status conference. The Court further suggested
that the parties conduct case law research to answer their inquiry regarding whether a statement

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that certain parties were not citizens of Illinois might be sufficient to establish subject matter
jurisdiction and comply with Chief Judge Springmann’s orders. Finally, the Court affirmed all
current deadlines.
On January 22, 2020, Plaintiff filed the instant motion. In her motion, Plaintiff requests
that the Court grant her until at least February 22, 2020 to continue engaging in jurisdictional
discovery. Plaintiff further requests that the Court provide the parties with instruction as to whether
the Court will accept an affidavit from defense counsel stating that the citizenship(s) of the relevant
Defendants was, at the relevant time, outside the state of Illinois. On January 23, 2020, Plaintiff
filed the affidavit from defense counsel. On January 24, 2020, Plaintiff filed an amended affidavit.
For the reasons explained below, Plaintiff is warned that the amended affidavit may not contain
sufficient allegations as to the citizenship(s) of the relevant parties.
The Court first sounded the alarm on subject matter jurisdiction five months ago. Since
then, the Court has provided four extensions of time for Plaintiff to supply proper allegations as to
the citizenship(s) of the relevant parties. Chief Judge Springmann’s August and September orders
both included direction as to how Plaintiff could sufficiently allege the citizenship(s) of the
relevant parties and provided citations to case law. Additionally, the undersigned noted at a
telephonic status conference that the parties could perhaps benefit from conducting legal research
of their own on this issue.
In her three motions to compel, Plaintiff represented that counsel for Defendant Earls
confirmed Defendant Earls’ citizenship. (Mot. Compel ¶ 2, ECF No. 196; Am. Mot. Compel ¶ 2,
ECF No. 198; Am. Mot. Compel ¶ 2, ECF No. 200). Plaintiff directed the Court’s attention to an
email from defense counsel attached as Exhibit A to her motions. 2 Id. This email states, “Ms. Earls

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The Court notes that Plaintiff’s third motion to compel at Docket Entry 200 was not accompanied by exhibits, though
it appears to refer to the same exhibits as those attached to the motions to compel at Docket Entries 196 and 198.

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in February of 2017 was a resident of Gary Indiana.” (Mot. Compel Ex. A, ECF No. 196-1; Am.
Mot. Compel Ex. A, ECF No. 198-1). Chief Judge Springmann has twice instructed that the
citizenship of a natural person is not determined by their state of residence. Rather, “[t]he
citizenship of a natural person for diversity purposes is determined of course by the person’s
domicile . . . , which means the state where the person is physically present with an intent to remain
there indefinitely.” Lyerla v. Amco Ins. Co., 461 F. Supp. 2d 834, 836 (S.D. Ill. 2006). Diversity
jurisdiction “is determined by citizenship of a state, not allegations of residency in a state.” Id.
at 835. Plaintiff must allege the domicile, not residence, of both herself and that of Defendant
Earls.
The Court warns Plaintiff that the allegations contained in the amended affidavit may also
prove insufficient. The amended affidavit, by counsel for Defendants PK Management, LLC, NSA
III Associates, LLC, and NSA III Limited Partnership, among other entities, states the following:
4. NSA III Limited Partnership is a limited partnership organized on October 10,
2006 under the laws of the State of Indiana with its principal place of business
located in the State of California.
5. NSA III Limited Partnership does not conduct business in the State of Illinois
nor was it a “citizen” (as defined by the Court pursuant to the Opinion and Order
filed August 28, 2019) of the State of Illinois on February 28, 2017, April 20, 2017
or at any other time.
6. NSA III Limited Partnership is comprised of two (2) partners. NSA III Associates
LLC is the sole general partner of NSA III Limited Partnership and Van Buren III
Associates Limited Partnership is the sole limited partner of NSA III Limited
Partnership.
7. NSA III Associates LLC is a limited liability company organized May 9, 2012
under the laws of the State of Delaware with a principal place of business located
in the State of California.
8. Neither NSA III Associates LLC nor the limited liability company manager of
NSA III Associates LLC, nor any of the direct or indirect owners of the limited
liability company manager of NSA III Associates LLC, conduct business in the
State of Illinois.
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9. Neither NSA III Associates LLC nor the limited liability company manager of
NSA III Associates LLC, nor any of the direct or indirect owners of the limited
liability company manager of NSA III Associates LLC were a “citizen” (as defined
by the Court pursuant to the Opinion and Order filed August 28, 2019) of the State
of Illinois on February 28, 2017 or at any other time.
10. Van Buren III Associates Limited Partnership is a limited partnership
organized June 23, 1983 under the laws of the State of Connecticut and the
principal place of business of Van Buren III Associates Limited Partnership is the
State of California.
11. Van Buren III Associates Limited Partnership does not conduct business in the
State of Illinois nor was it a “citizen” (as defined by the Court pursuant to the
Opinion and Order filed August 28, 2019) of the State of Illinois on February 28,
2017 or at any other time.
12. The general partner of Van Buren III Associates Limited Partnership is a limited
liability company organized October 4, 2018 under the laws of the State of
Connecticut and the principal place of business of the general partner of Van Buren
III Associates Limited Partnership is the State of California.
13. Neither the general partner of Van Buren III Associates Limited Partnership nor
any of the direct or indirect owners of the general partner of Van Buren III
Associates Limited Partnership conduct business in the State of Illinois.
14. Neither the general partner of Van Buren III Associates Limited Partnership nor
any of the direct or indirect owners of the general partner of Van Buren III
Associates Limited Partnership were a “citizen” (as defined by the Court pursuant
to the Opinion and Order filed August 28, 2019) of the State of Illinois on
February 28, 2017 or at any other time.
15. To the best of my knowledge, none of the limited partners of Van Buren III
Associates Limited Partnership nor any of the direct or indirect owners of the
limited partners of Van Buren III Associates Limited Partnership were a “citizen”
(as defined by the Court pursuant to the Opinion and Order filed August 28, 2019)
of the State of Illinois on February 28, 2017.
16. PK Management LLC . . . is a limited liability company organized
December 6, 2010 under the laws of the State of Delaware and is the sole member
of NSA III Associates LLC with a principal place of business located in the State
of Ohio.
17. Neither PK Management LLC nor the limited liability company manager of PK
Management LLC, nor any of the owners (direct and indirect) of PK Management
LLC were a “citizen” (as defined by the Court pursuant to the Opinion and Order
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filed August 28, 2019) of the State of Illinois on February 28, 2017 or at any other
time. The owners (direct and indirect) of PK Management LLC are “domiciled” (as
defined by the Court pursuant to the Opinion and Order filed August 28, 2019) in
the States of New York, California, Ohio and Florida.
(Aff. ¶¶ 4-17, ECF No. 211).
Case law suggests that Plaintiff must offer more to satisfy the jurisdictional concerns of the
Court. A limited liability company’s citizenship “for purposes of . . . diversity jurisdiction is the
citizenship of its members.” Cosgrove v. Bartolotta, 150 F.3d 729, 731 (7th Cir. 1998). After
inquiry, the Court must therefore be advised of the identity of each member of Defendants PK
Management, LLC, NSA III Associates, LLC, and NSA III Limited Partnership and advised of
each member’s citizenship. Guardsmark, LLC, 487 F.3d at 534 (“an LLC’s jurisdictional
statement must identify the citizenship of each of its members as of the date the complaint or notice
of removal was filed, and, if those members have members, the citizenship of those members as
well.”). It is not sufficient to broadly allege that all members of a limited liability company or
limited partnership are citizens of a particular state. See Guar. Nat’l Title Co., 101 F.3d at 59
(explaining that the court would “need to know the name and citizenship(s)” of each partner for
diversity jurisdiction purposes). Likewise, it is not sufficient to allege that a party is not a citizen
of a particular state; states of citizenship must be explicitly named. Cameron v. Hodges, 127 U.S.
322, 324-25 (1888). Finally, citizenship must be “traced through multiple levels” for those
members who are a partnership or a limited liability company, as anything less can result in a
remand for want of jurisdiction. Mut. Assignment & Indem. Co. v. Lind-Waldock & Co., LLC, 364
F.3d 858, 861 (7th Cir. 2004).
The Seventh Circuit Court of Appeals has explicitly rejected the type of affidavit proposed
by Plaintiff in the instant matter. In America’s Best Inns, Inc., the parties provided the court with
two affidavits regarding the citizenship of the defendant. An affidavit from defense counsel stated,
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“[b]ased upon my personal knowledge, each of the limited partners of Best Inns of Abilene, L.P.,
was a resident of Kansas at the time the Complaint in the underlying action, Cause No. 90–C–
4087, was filed.” Am.’s Best Inns, Inc. v. Best Inns of Abilene, L.P., 980 F.2d 1072, 1073 (7th Cir.
1992). An affidavit from the president of the corporate plaintiff stated, “[t]o the best of my
knowledge and belief . . . none of the limited partners of Best Inns of Abilene, L.P. were citizens
of the State of Illinois nor of the State of Delaware at the time the complaint was filed.” Id. The
Court of Appeals held that neither of these statements established the citizenship(s) of all partners
and remanded the case with instructions to dismiss for lack of subject matter jurisdiction. Id. The
court specifically explained that, among other deficiencies,
neither of the affidavits identifies the limited partners at the time the complaint was
filed. It is impossible to determine diversity of citizenship without knowing who
the persons in question are. And litigants instructed to specify the partners and their
citizenship may not respond with a vacuous statement such as “no partner is a
citizen of Illinois.”
Id.
The amended affidavit in the instant matter appears similarly deficient. Through the
amended affidavit, the Court is advised that the general partner and sole limited partner of
Defendant NSA III Limited Partnership are Defendant NSA III Associates, LLC and Van Buren
III Associates Limited Partnership, respectively. (Aff. ¶ 6, ECF No. 211). Yet, the Court is told
only that the general partner of Van Buren III Associates Limited Partnership is itself a limited
liability company organized under the laws of the State of Connecticut with a principal place of
business in California and that neither the general partner, nor any direct or indirect owners of the
general partner, nor any limited partners, nor any direct or indirect owners of the limited partners
of Van Buren III Associates Limited Partnership were a citizen of Illinois when the Complaint was
filed. Id. at ¶¶ 12, 14-15. The amended affidavit provides no information regarding the actual

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identity of the members of Van Buren III Associates Limited Partnership—or even whether,
perhaps, those members have members—much less the citizenship(s) of those members.
The question of Defendant PK Management, LLC’s citizenship also remains. In Exhibit A
to the instant motion, defense counsel identifies the following entities as members of PK
Management, LLC: PK Group Holdings, LLC, Greg Perlman, GP Family Holdings, LLC, GP Kids
Holdings, LLC, GJP and Friends, LLC, CMC Capital, LLC, Aequus Investments, LLC, and Castle
Hills Investors. (Mot. Extend Time Ex. A 2, ECF No. 209-1). 3 Yet, again, the Court has been given
no information regarding the citizenship(s) of these entities. The identity of all members of
Defendant PK Management, LLC, much less the state(s) of which Defendant PK Management,
LLC is a citizen, is far from clear.
The Court has provided Plaintiff with multiple opportunities to cure the deficiencies first
identified by Chief Judge Springmann regarding the allegations of the citizenship(s) of the relevant
parties. Plaintiff has twice stated that “no party objected to jurisdiction in this matter.” (Mot.
Extend Time ¶ 18, ECF No. 202; Mot. Extend Time ¶ 24, ECF No. 209). This is irrelevant. The
Court is required to police its subject matter jurisdiction, and it will continue to do so here. Hay v.
Ind. State Bd. of Tax Comm’rs, 312 F.3d 876, 879 (7th Cir. 2002). As the party seeking federal
jurisdiction, Plaintiff has the burden of establishing that subject matter jurisdiction exists. Smart v.
Local 702 Int’l Bhd. of Elec. Workers, 562 F.3d 798, 802-03 (7th Cir. 2009).
“Once the court sounds the alarm, the litigants must be precise.” Am.’s Best Inns, Inc., 980
F.2d at 1073. The allegations provided by Plaintiff thus far, including those in the amended
affidavit, appear insufficient for the purpose of determining the citizenship(s) of the relevant

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The Court notes that an email from Plaintiff’s counsel identifies Robert Kriensky as a potential member of Defendant
PK Management, LLC, but this individual is not listed as a member by defense counsel. (Mot. Extend Time Ex. A
2-3, ECF No. 209-1).

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parties. Nonetheless, this order does not predict how Chief Judge Springmann will rule on any
forthcoming jurisdictional statement from Plaintiff, nor does it seek to highlight every possible
deficiency in the allegations already offered. It is for Plaintiff to consider the issue, conduct
thorough research as necessary, and ultimately respond to the orders of Chief Judge Springmann.
As stated in Chief Judge Springmann’s August 28, 2019 Order, Plaintiff must allege: (1) the
citizenship on February 28, 2017, the date the Complaint was filed, of (a) Plaintiff, (b) Angenette
C. Earls, (c) PK Management, LLC, (d) NSA III Associates, LLC; and (2) the citizenship on April
20, 2017, the date of the First Amended Complaint, of NSA III Limited Partnership. (Aug. 28,
2019 Op. & Order 4, ECF No. 158).
Accordingly, the Court hereby GRANTS Plaintiff’s Unopposed Motion to Extend Time
in Which to Supplement Jurisdiction [DE 209] as follows:
1. The Court GRANTS Plaintiff’s request to extend the deadline to conduct jurisdictional
discovery and EXTENDS this deadline to February 28, 2020. No further requests to
extend this deadline will be granted.
2. At the direction of the District Court, the Court EXTENDS Plaintiff’s deadline to show
cause why this matter should not be dismissed for lack of subject matter jurisdiction to
February 28, 2020. No further requests to extend this deadline will be granted.
Finally, the Court notes that it will look favorably upon a motion for a protective order to
allay privacy concerns, should that be necessary to facilitate supplying the Court with proper
allegations regarding the citizenship(s) of the relevant parties.
So ORDERED this 29th day of January, 2020.
s/ Joshua P. Kolar
MAGISTRATE JUDGE JOSHUA P. KOLAR
UNITED STATES DISTRICT COURT

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