Fifth Third Bank v. McIntyre et al
Filing
10
OPINION & ORDER: DENYING dft's 8 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Karl S. Forester on 7/8/13. (KJR)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
CIVIL ACTION NO. 13-111-KSF
FIFTH THIRD BANK
v.
PLAINTIFF
OPINION & ORDER
ROBERT MCINTYRE and
BRAAN2 LIFE SCIENCES, LLC
DEFENDANTS
*********
Currently before the Court is the motion [DE #8] of the defendant, Robert McIntyre, to
dismiss this action pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure on the grounds
that the Court lacks subject matter jurisdiction over this action. The plaintiff, Fifth Third Bank,
objects to McIntyre’s motion [DE #9]. For the reasons set forth below, McIntyre’s motion to dismiss
will be denied.
On April 17, 2013, Fifth Third Bank filed this civil action against McIntyre and Braan2 Life
Sciences, LLC (“Braan2") based on the Defendants’ alleged failure to pay amounts due on two
promissory notes [DE #1]. In its complaint, Fifth Third Bank alleges subject matter jurisdiction
“pursuant to 28 U.S.C. § 1332(a) due to the complete diversity of citizenship of the parties and an
amount in controversy exceeding $75,000, exclusive of interest and costs.” Fifth Third Bank makes
the following allegations with respect to diversity jurisdiction: that it is “an Ohio banking
corporation . . .authorized to conduct business in the Commonwealth of Kentucky;” that McIntyre
“is domiciled in Kentucky” and “is a citizen of Kentucky”; and that Braan2 “is a Kentucky limited
liability company with a principal office address of 1802 Lakewood Drive, Lexington, Kentucky,”
its “agent for service of process is Matthew Wiley, 651 Perimeter Drive, Lexington, Kentucky
40517,” and “its sole member is McIntyre, who is a citizen of Kentucky.” Furthermore, Fifth Third
Bank alleges that in the notes executed by the Defendants, they submitted to the subject matter
jurisdiction of this Court.
McIntyre argues that Fifth Third Bank has failed to satisfy the requirements of 28 U.S.C. §
1332(a), which provides federal district courts with “original jurisdiction of all civil actions where
the matter in controversy exceeds the sum or value of $75,000. . . and is between – (1) citizens of
different States.” 28 U.S.C. § 1332(a)(1). Courts have interpreted this statute to require that “all
parties on one side of the litigation [must be] of a different citizenship from all parties to the other
side of the litigation.” Citizens Bank v. Plasticware, LLC, 830 F.Supp.2d 321, 325 (E.D.Ky
2011)(citing Coyne v. Amer. Tobacco Co., 183 F.3d 488, 492 (6th Cir. 1999). The burden is on the
plaintiff to establish diversity of citizenship. Washington v. Sulzer Orthopedics, Inc., 76 Fed. Appx.
644-645-46 (6th Cir. 2009).
In order to establish diversity jurisdiction with respect to a corporation, the plaintiff must
allege both its place of incorporation and its principal place of business. Vaughn v. Holiday Inn
Cleveland Coliseum, 56 Fed.Appx. 249, 250 (6th Cir. 2003); Acwoo Intern. Steel Corp. v. Toko
Kaium Kaish, Ltd., 840 F.2d 1284, 1290 n. 6 (6th Cir. 1988); Averdick v. Republic Financial
Services, Inc., 803 F.Supp. 37, 40 (E.D.Ky, 1992). McIntyre argues that Fifth Third Bank has only
alleged that it is an “Ohio banking corporation” and that it is “a citizen of Ohio,” but failed to allege
any principal place of business. Fifth Third, however, has responded that its “Foreign Corporation
Application for Certificate of Authority is on file with the Kentucky Secretary of State” and that its
“2012 annual report on file with the Kentucky Secretary of State (the “2012 Annual Report”)
provides that Fifth Third’s principal office is in Cincinnati, Ohio, with an address of 38 Fountain
2
Square Plaza, MD10AT76, Cincinnati, OH 45236.” As a result, Fifth Third Bank is a citizen of
Ohio for all purposes concerning this Court’s subject matter jurisdiction.
McIntyre also argues that Fifth Third Bank has not properly alleged the citizenship of each
member of Braan2. It is clear in this circuit that limited liability companies must be treated like
partnership rather than corporations for diversity jurisdiction purposes. Homfeld II, LLC v. Comair
Holdings, Inc., 53 Fed.Appx. 731 ,732 (“a limited liability company is not treated as a corporation
and has the citizenship of its members”)(citing Cosgrove v. Bartolotta, 150 F.3d 729 (7th Cir. 1998).
In its complaint, Fifth Third Bank alleges that Braan2 is a Kentucky limited liability company, that
its principal place of business is Kentucky, and that its agent of service resides in Kentucky. The
complaint also expressly asserts that Braan2's “sole member is McIntyre, who is a citizen of
Kentucky.” As a result, Braan2 is a citizen of Kentucky for all purposes concerning this Court’s
subject matter jurisdiction.
Thus, Fifth Third Bank, a citizen of Ohio for diversity of citizenship purposes, is completely
diverse from McIntyre, a Kentucky citizen, and Braan2, a Kentucky citizen. Accordingly, diversity
of jurisdiction under 28 U.S.C .§ 1332(a) is satisfied, and this Court has subject matter jurisdiction
over this action. The Court, being fully and sufficiently advised, hereby ORDERS that McIntyre’s
motion to dismiss [DE #8] is hereby DENIED.
This July 8, 2013.
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?