Biosonx L L C v. Sports Design & Development Inc et al

Filing 5

SUA SPONTE JURISDICTIONAL REVIEW BRIEFING ORDER. Signed by Magistrate Judge Joseph H L Perez-Montes on 11/7/2017. (crt,Bunting, M)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
ALEXANDRIA DIVISION

c

BIOSONIX, LLC,
Plaintiff

CIVIL ACTION NO. 1:17-CV-01387

VERSUS

JUDGE DRELL

SPORTS DESIGN AND
DEVELOPMENT, INC., ET AL.,
Defendants

MAGISTRATE JUDGE PEREZ-MONTES

SUA SPONTE JURISDICTIONAL BRIEFING ORDER
Before the Court is a Complaint filed by Plaintiff Biosonix, LLC (“Biosonix”)
premising federal jurisdiction upon diversity of citizenship (Doc. 1). “[S]ubject-matter
jurisdiction, because it involves a court’s power to hear a case, can never be forfeited
or waived.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006) (citing Ruhrgas AG v.
Marathon Oil Co., 526 U.S. 574, 583 (1999)).

The Court has “an independent

obligation to determine whether subject-matter jurisdiction exists, even in the
absence of a challenge from any party.” Id.
The diversity statute – 28 U.S.C. § 1332 – is satisfied upon a showing of: (1)
diversity of citizenship between the parties; and (2) an amount in controversy in
excess of $75,000, exclusive of interest and costs. “Complete diversity requires that
all persons on one side of the controversy be citizens of different states than all
persons on the other side.” Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1079
(5th Cir. 2008) (citing Harrison v. Prather, 404 F.2d 267, 272 (5th Cir. 1968)) (internal
citation and quotation omitted).

“[W]hen jurisdiction depends on citizenship,

citizenship must be distinctly and affirmatively alleged.” Getty Oil Corp., a Div. of
Texaco, Inc. v. Ins. Co. of N. Am., 841 F.2d 1254, 1259 (5th Cir. 1988) (internal
quotation omitted) (See also Mullins v. Testamerica, Inc., 2008 WL 4888576 (5th Cir.
2008)(per curiam). The party invoking subject matter jurisdiction in federal court
has the burden of establishing the Court’s jurisdiction. St. Paul Reinsurance Co.,
Ltd. v. Greenberg, 134 F. 3d 1250, 1253-54 (5th Cir. 1998). In this case, Biosonix
bears that burden.
The citizenship of an individual is his or her domicile, meaning the place where
an individual resides and intends to remain. See Acridge v. Evangelical Lutheran
Good Samaritan Soc., 334 F.3d 444, 448 (5th Cir. 2003). A corporation shall be
deemed to be a citizen of every State and foreign state by which it has been
incorporated and of the State or foreign state where it has its principal place of
business. See Tewari De-Ox Systems, Inc. v. Mountain States/Rosen, L.L.C., 757
F.3d 481, 483 (5th Cir. 2014). “[T]he citizenship of a partnership is determined by
reference to the citizenship of each of its partners.” See Int'l Paper Co. v. Denkmann
Associates, 116 F.3d 134, 135, 137 (5th Cir. 1997). The citizenship of a limited
liability company (“L.L.C.”), a limited partnership, or other unincorporated
association or entity is determined by the citizenship of all its members. See Harvey,
542 F.3d at 1079-80.
Biosonix alleges Defendant Sports Design and Development, Inc. (“SDD”) is a
corporation formed under the laws of the State of Louisiana and having its principal
place of business in Alexandria, Louisiana. (Doc. 1). SDD is citizen of Louisiana.

Biosonix alleges Defendants Wesley Higgins and Marcia Olson are citizens of
Louisiana. (Doc. 1).
Biosonix alleges it is a foreign corporation formed under the laws of the State
of Delaware and that its principal place of business is in Texas. (Doc. 1). Biosonix
further alleges it is a foreign LLC owned by William H. Lewis (“Lewis”). (Doc. 1).
However, while the state of incorporation and principal place of business are
sufficient jurisdictional facts to establish a corporation’s citizenship, Biosonix is an
LLC.

(Doc. 1). The Fifth Circuit has held that the citizenship of an LLC “is

determined by the citizenship of all its members.” Harvey, 542 F.3d at 1079-80.
However, Biosonix’s Complaint does not allege facts regarding the citizenship of all
of the members of Biosonix. (Doc. 1). The citizenship of Biosonix is not clear from
the pleadings.
The Court cannot determine from the pleadings whether the parties are
diverse in citizenship. Therefore, the existence of federal jurisdiction is in question.
Accordingly,
The Clerk of Court is DIRECTED to serve a copy of this order upon Defendants,
Sports Design and Development, Inc., Wesley Higgins, and Marcia Olson,
IMMEDIATELY upon receipt of proof of service or an appearance.
IT IS ORDERED that, not later than twenty-one (21) days from service of this
Order, Plaintiff Biosonix, LLC SHALL FILE: (1) a Jurisdictional Memorandum
setting forth specific facts to establish the citizenship of all of the members of
Biosonix, LLC, that supports a finding that the parties are diverse in citizenship; and

(2) a motion for leave to amend the jurisdictional allegations of the Complaint
pursuant to 28 U.S.C. § 1653 to adequately allege diversity jurisdiction.
IT

IS

FURTHER

ORDERED

that Defendants,

Sports

Design and

Development, Inc., Wesley Higgins, and Marcia Olson, will be allowed seven (7) days
from receipt of Biosonix’s memorandum regarding jurisdiction to file a response.
7th
THUS DONE AND SIGNED in chambers in Alexandria, Louisiana, this _____
day of November, 2017.
____________________________________
Joseph H.L. Perez-Montes
United States Magistrate Judge