CONWAY et al v. URIE'S WATERFRONT RESTAURANT et al

Filing 49

MEMORANDUM OPINION & ORDER, Denying without prejudice 23 Motion for Summary Judgment; within 14 days of the date of this Order, the parties shall notify the Court as to their positions on amending the pleadings and the docket to reflect the proper parties to this action. Signed by Judge Noel L. Hillman on 8/25/16. (js)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SUZANNE CONWAY, et al.,
Plaintiffs,

Civil No. 13-4453 (NLH)

URIE’S WATERFRONT RESTAURANT, et
al.,

MEMORANDUM OPINION & ORDER

v.

Defendants.

HILLMAN, District Judge
WHEREAS, husband and wife Suzanne Conway and George Brooks
claim that defendants “Urie’s Waterfront Restaurant” and “Big
Fish Restaurant Group” breached a duty of care owed to them, and
that this breach caused Conway and Brooks to fall into the water
off Defendants’ floating dock; and
WHEREAS, Plaintiffs more specifically claim that
Urie’s and Big Fish Restaurant Group negligently failed to
maintain and repair the floating dock, knowingly allowed a
dangerous condition to exist, failed to warn them of the
dangerous and unsafe condition of the dock, and failed to
provide adequate lighting and barricades, all resulting in
Plaintiffs falling off the dock and suffering injuries; and
WHEREAS, Defendants having moved for summary judgment in
their favor on all of Plaintiffs’ claims because they argue that
there is no evidence - expert or otherwise – to show that the

floating dock was in a dangerous condition or that Defendants
otherwise breached a duty of care to Plaintiffs; and
WHEREAS, during the pendency of Defendants’ motion, the
Court having ordered the parties to file a joint certification
of the citizenship of the parties, for two reasons:

(1) the

complaint’s jurisdictional allegations regarding defendants
Urie’s Waterfront Restaurant and Big Fish Restaurant Group were
insufficient to establish diversity jurisdiction in that the
complaint fails to identify what kind of business association
these entities are, thus preventing an application of the
appropriate diversity jurisdiction test or standard applicable
to each, and (2) judgment may only be entered against or in
favor of a party whose identity is properly established (Docket
No. 39); and
WHEREAS, the parties having complied with the Court’s Order
by filing their joint certification, which provides that “Big
Fish Restaurant Group” no longer exists, and “Urie’s Waterfront
Restaurant” is owned by Dirysa LLC and Rysadi LLC 1 (Docket No.
40); and

1

Because the citizenship of an LLC is determined by the
citizenship of each of its members, Defendants listed the
members of Dirysa LLC and Rysadi LLC. On the parties’ first
joint certification, even though each member’s name and address
was listed, the joint certification was silent as to the actual
state of citizenship of each of the members. (Docket No. 40.)
2

WHEREAS, the information in the joint certification fails
to correct the problem that a judgment may only be entered
against or in favor of a party whose identity is properly
established; and
WHEREAS, Defendants have moved for summary judgment on the
basis that they, as business owners, have a duty of care to
their patrons, but that Plaintiffs have not provided any
evidence to support that they breached that duty; but
WHEREAS, the named Defendants are not the “business owners”
who may be entitled to judgment; and
WHEREAS, Plaintiffs have therefore lodged their claims
against two entities that do not exist, and the two non-existent
entities have moved for judgment in their favor;
Consequently,
IT IS on this

25th

day of

August

2016

ORDERED that Defendants’ motion for summary judgment [23]
be, and the same hereby is, DENIED WITHOUT PREJUDICE; and it is
further

The Court issued another order to show cause requiring the
parties to identify the state of citizenship for each member of
the LLCs. (Docket No. 45.) The parties filed a second joint
certification, which provides that each member is a citizen of
New Jersey. (Docket No. 48.)
3

ORDERED that, within 14 days of the date of this Order, the
parties shall notify the Court as to their positions on amending
the pleadings and the docket to reflect the proper parties to
this action.

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

At Camden, New Jersey

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