Smith v. Blitz U.S.A., Inc. et al

Filing 89

ORDER that on or before June 4, 2012, the Kinderhook Entities shall provide Plaintiff with the following information: (1) the identity of each partner of Kinderhook Capital Fund II, L.P., and each member of Kinderhook Industries, LLC; and (2) each pa rtners/members state(s) of citizenship; the deadline for Plaintiff to file a new Amended Complaint, as set forth in the Courts May 10, 2012 Order, is CONTINUED to June 11, 2012; and briefing on the Kinderhook Entities Motion to Dismiss (Doc. No. 74) is STAYED pending further Order of the Court. The hearing on the Motion, currently scheduled for June 18, 2012, is CANCELED(Written Opinion). Signed by Judge Richard H. Kyle on 05/21/12. (kll)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Robyn Smith for Devan VanBrunt, a minor,
by his mother and natural guardian,
Plaintiff,
Civ. No. 11-1771 (RHK/LIB)
ORDER

v.
Blitz U.S.A., Inc., et al.,
Defendants.

This matter is before the Court sua sponte.
By Order dated May 10, 2012 (Doc. No. 84), the Court ordered Plaintiff to file –
on or before May 23, 2012 – a new Amended Complaint “pleading with specificity the
citizenship of all parties” in this case, including “identify[ing] and plead[ing] the
citizenship of” each of the partners/members of recently added Defendants Kinderhook
Capital Fund II, L.P. and Kinderhook Industries, LLC (the “Kinderhook Entities”). The
Court noted, in the absence of such information, that it cannot ascertain whether there
exists diversity jurisdiction in this case.
On May 17, 2012, Plaintiff’s counsel wrote the Court, seeking expedited
jurisdictional discovery because Plaintiff was having difficulty ascertaining the identity
and citizenship of each Kinderhook Entity’s partners/members. (Doc. No. 85.) Counsel
for the Kinderhook Entities responded the following day, noting that he would “work
with Plaintiff to ensure that Plaintiff is able to respond to the Court’s order in a timely
fashion.” (Doc. No. 86.) By letter from counsel later that day, however, the Kinderhook

Entities informed Plaintiff only that: (1) “Kinderhook Industries, LLC is comprised of
three members. No member is a resident of the state of Minnesota”; and (2) “Kinderhook
Capital Fund II, L.P., is comprised of multiple limited partners. More than one limited
partner is a resident of the state of Minnesota.” (Doc. No. 87 Ex. A.) In light of these
representations, Plaintiff has renewed her request for jurisdictional discovery, asserting
that the information provided by the Kinderhook Entities does not suffice. (Doc. No. 87.)
The Court agrees.
The Court previously ordered Plaintiff to plead “with specificity” the citizenship
of the Kinderhook Entities, including “identify[ing] and plead[ing] the citizenship of”
each of the partners/members thereof. That directive was consistent with guidance from
the Eighth Circuit. See Barclay Square Props. v. Midwest Fed. Sav. & Loan Ass’n of
Minneapolis, 893 F.2d 968, 969 (8th Cir. 1990) (complaint failed to properly plead
diversity jurisdiction when it failed to allege the citizenship of each partner of a limited
partnership). Yet, the information provided neither identifies the partners/members of the
Kinderhook Entities nor indicates their state(s) of citizenship. Moreover, the suggestion
that Plaintiff can adequately allege diversity based on the assertion that “[n]o member [of
Kinderhook Industries, LLC] is a resident of the state of Minnesota” is incorrect. See
Cameron v. Hodges, 127 U.S. 322, 324-25 (1888) (Arkansas citizen alleging that “none
of the complainants are . . . citizens of said State of Arkansas” was insufficient to invoke
diversity jurisdiction).
Nevertheless, the Court does not believe that a short period of jurisdictional
discovery (and the wrangling it will inevitably entail) would be appropriate; it is far better

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for all involved to resolve the jurisdictional issue sooner rather than later. Accordingly,
the Court will order the Kinderhook Entities to identify their partners/members and their
states of citizenship in order to allow Plaintiff to adequately allege the facts necessary to
jurisdiction. And as the Court previously noted, if in fact diversity is lacking (as the
information proffered by the Kinderhook Entities appears to suggest), the Court will
revisit the decision granting Plaintiff leave to add those parties to this case.
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
ORDERED:
1.

On or before June 4, 2012, the Kinderhook Entities shall provide Plaintiff

with the following information: (1) the identity of each partner of Kinderhook Capital
Fund II, L.P., and each member of Kinderhook Industries, LLC; and (2) each partner’s/
member’s state(s) of citizenship. This means that if a partner/member is a corporation, its
state of incorporation and the location of its principal place of business shall be specified.
See 28 U.S.C. 1332(c). Similarly, if a partner/member is some other artificial entity
(such as a partnership or limited-liability company), the identity of each partner/member
of that entity and the partner’s/member’s state(s) of citizenship shall be specified. See
Hicklin Eng’g, L.C. v. Bartell, 439 F.3d 346, 347-48 (7th Cir. 2006) (“The citizenship of
a limited liability company is that of its members, and its members may include
partnerships, corporations, and other entities that have multiple citizenships. A federal
court thus needs to know each member’s citizenship, and if necessary each member’s
members’ citizenships.”); Wright v. JPMorgan Chase Bank, NA, No. 09-cv-482, 2009
WL 854644, at *1 (W.D. La. Mar. 26, 2009) (same);

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2.

The deadline for Plaintiff to file a new Amended Complaint, as set forth in

the Court’s May 10, 2012 Order, is CONTINUED to June 11, 2012. On or before that
date, Plaintiff shall file a new Amended Complaint pleading with specificity the
citizenship of all parties, including the Kinderhook Entities. If the new Amended
Complaint reveals that addition of the Kinderhook Entities to this case would destroy
diversity jurisdiction, the Court will revisit the decision granting Plaintiff leave to amend.
See Bailey v. Bayer CropScience, L.P., 563 F.3d 302, 307 (8th Cir. 2009) (“[W]hen a
trial court grants a plaintiff leave to amend the complaint by naming additional
defendants, and the plaintiff fails to inform the court that one or more of those defendants
will destroy diversity,” the amendment “should be considered a nullity and the Court
given an opportunity to consider whether justice requires that [the plaintiff] be permitted
to join [the additional] defendant.”); 28 U.S.C. § 1447(e) (“If after removal the plaintiff
seeks to join additional defendants whose joinder would destroy subject matter
jurisdiction, the court may deny joinder, or permit joinder and remand the action.”); and
3.

Briefing on the Kinderhook Entities’ Motion to Dismiss (Doc. No. 74) is

STAYED pending further Order of the Court. The hearing on the Motion, currently
scheduled for June 18, 2012, is CANCELED.

Date: May 21, 2012

s/Richard H. Kyle
RICHARD H. KYLE
United States District Judge

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