LSREF2 Baron, LLC v. Yemelos et al

Filing 18

ORDER denying 16 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Carl Barbier on 6/25/12. (sek, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LSREF2 BARON, L.L.C.

CIVIL ACTION

VERSUS

NO: 11-2969

YEMELOS ET AL.

SECTION "J"(1)
ORDER

Before the Court are Defendants’ Motion to Dismiss for Lack of
Subject

Matter

Jurisdiction

(Rec.

Doc.

16)

and

Plaintiff’s

opposition to the same (Rec. Doc. 17). Defendants previously filed
a Motion to Dismiss for Lack of Subject Matter Jurisdiction (Rec.
Doc. 9), which this Court denied as moot after the Plaintiff, an
LLC, filed an Amended Complaint (Rec. Doc. 14) clarifying the
citizenship

of

its

members.

Defendants

now

argue

that

the

Plaintiff’s Amended Complaint (Rec. Doc. 14) was insufficient in
that it failed to clarify whether or not the members in question
were

equivalent

to

corporations

or

LLCs

for

the

purpose

of

establishing diversity under U.S.C. § 1332.
In deciding a motion to dismiss for lack of subject matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1), “the
district court is ‘free to weigh the evidence and resolve factual
disputes in order to satisfy itself that it has the power to hear

the case.’” Krim v. pcOrder.com, Inc., 402 F.3d 489, 494 (5th Cir.
2005).

In weighing the evidence, the court may rely on the

complaint by presuming the allegations in the complaint to be true
or by supplementing the complaint with undisputed facts. Norske
Stats Oljeselskap As v. HeereMac Vof, 241 F.3d 420, 424 (5th Cir.
2001). The party asserting jurisdiction must carry the burden of
proving the existence of subject matter jurisdiction to survive a
Rule 12(b)(1) motion to dismiss. Randall D. Wolcott, M.D., P.A. v.
Sebelius, 635 F.3d 757, 762 (5th Cir. 2011).

The standard of

review for a motion to dismiss under Rule 12(b)(1) is the same as
that for a motion to dismiss pursuant to Rule 12(b)(6).

United

States v. City of New Orleans, No. 02-3618, 2003 WL 22208578, at *1
(E.D. La. Sept. 19, 2003).
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff
must plead enough facts to “state a claim to relief that is
plausible on its face.”

Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547
(2007)).

A claim is facially plausible when the plaintiff pleads

facts that allow the court to “draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id.

A court

must accept all well-pleaded facts as true and must draw all
reasonable inferences in favor of the plaintiff.

Lormand v. U.S.

Unwired, Inc., 565 F.3d 228, 232-33 (5th Cir. 2009); Baker v.
Putnal, 75 F.3d 190, 196 (5th Cir. 1996).
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The court is not,

however, bound to accept as true legal conclusions couched as
factual allegations.

Iqbal, 556 U.S. at 678.

Here, Plaintiff alleges in its Amended Complaint (Rec. Doc.
14) that the LLC members in question are “limited corporations”
under Bermuda law. Accepting this allegation as true, the Court
finds that at this time the Plaintiff’s description of the LLC
members is sufficient to establish that they are corporations for
the purpose of establishing diversity jurisdiction. As such, its
previous finding of complete diversity stands. Accordingly,
IT IS ORDERED that Defendants’ Motion to Dismiss (Rec. Doc.
16) is hereby DENIED without prejudice.
New Orleans, Louisiana this 25th day of June, 2012.

____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

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