Stokes v. Captain D's, LLC et al

Filing 21

ORDER granting 19 Motion to Dismiss; denying 20 Motion to Amend/Correct. Signed by District Judge Sharion Aycock on 12/20/2016. (dbm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
LARRY J. STOKES

PLAINTIFF

V.

CIVIL ACTION NO. 1:16-CV-00152-SA-DAS

CAPTAIN D’S, LLC,
CAPTAIN D’S REALTY, LLC,
CAPTAIN D’S DBA,
STORE MASTER FUNDING I, LLC, and
SHN PROPERTIES, LLC

DEFENDANTS
ORDER

There are two motions pending in this case. The first is a Motion to Dismiss [19] filed by
the Defendants to dismiss two parties, Captain D’s Realty, LLC, and Captain D’s DBA. The
Plaintiff has no objection to this motion. The second is a Motion for Leave to Amend [20] filed
in response to the Court’s Order to Show Cause [18] as to jurisdiction.
In light of the fact that there is no opposition to the Defendant’s Motion to Dismiss, the
Court finds the motion well taken and it is therefore granted. Captain D’s Realty, LLC, and
Captain D’s DBA are dismissed from this case without prejudice.
Moving to the Defendants’ Motion for Leave to Amend, the Court’s Order recognized
that the Defendants failed to adequately allege the citizenship of the Plaintiff, Captain D’s DBA,
and Defendant Store Master Funding I, LLC.
In their proposed Amended Notice of Removal the Defendants affirmatively allege that
the Plaintiff is a citizen of Mississippi, and have therefore established the Plaintiff’s citizenship
for jurisdictional purposes.
Because Captain D’s DBA is now dismissed from this action, its citizenship is no longer
an issue for purposes of jurisdiction. Store Master Funding I, LLC remains a party to this action.
In their proposed Amended Notice of Removal the Defendants’ allege:

Store Master Funding I, LLC is a Delaware Limited Liability
Corporation whose sole member is Store Capital Acquisitions,
LLC, a Delaware Limited Liability Corporation. Both Store Master
Funding I, LLC’s and Store Capital Acquisitions, LLC’s principal
place of business is Arizona. Store Master Funding I, LLC is
therefore a citizen of Delaware and Arizona for the purposes of
diversity jurisdiction.
This is not an adequate jurisdictional allegation. As clearly stated in the Court’s Order,
although the state of incorporation and principal place of business are sufficient jurisdictional
facts to establish a corporation’s citizenship, Store Master Funding is an LLC. 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. Because Store Capital Acquisitions, LLC is also an LLC, the
citizenship of all of its members must also be affirmatively alleged. Store Master Funding I,
LLC’s citizenship is not clear from the pleadings, and the existence of federal jurisdiction is in
question. For this reason, the Defendants’ Motion for Leave to Amend is denied.
The Defendants’ unopposed Motion to Dismiss [19] is GRANTED and Captain D’s
Realty, LLC, and Captain D’s DBA are DISMISSED from this case without prejudice. The
Defendants’ Motion for Leave to Amend [20] is DENIED.
The Defendants have fourteen days from the entry of this Order to submit: (1) a response
sufficiently alleging the citizenship of Store Master Funding, LLC, and the attendant state of
citizenship of each of its members as of the date of removal; and (2) a motion for leave, pursuant
to 28 U.S.C. § 1653, to amend the jurisdictional allegations of the notice of removal to
adequately allege diversity jurisdiction.
A failure to adequately allege jurisdiction will result in dismissal of the action.
SO ORDERED on this 20th day of December, 2016
/s/ Sharion Aycock
UNITED STATES DISTRICT JUDGE
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