ENTEADO et al v. HI-POWER CYCLES, LLC et al

Filing 7

ORDER - ORDERED that Defendant High-Power Cycles LLC shall have ten (10) days to amend the notice of removal to properly comply with 28 U.S.C. § 1332. If Defendant fails to do so, this case will be dismissed for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3).Signed by Judge Noel L. Hillman on 3/7/16. (dd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

KIMBERLY ENTEADO, by her
subgrogee STATE FARM FIRE &
CASUALTY CO., and DAVID
FEDEROFF,

CIVIL NO. 16-996 (NLH/JS)
ORDER

Plaintiffs,
v.
HI-POWER CYCLES, LLC and BME
BIKES d/b/a BOOSTMORE LLC,
Defendants.

IT APPEARING that Defendant Hi-Power Cycles, LLC filed an
Amended Notice of Removal on March 4, 2016; and
WHEREAS, the Notice of Removal states that this Court has
diversity jurisdiction over the parties pursuant to 28 U.S.C.
§ 1332; and
WHEREAS, federal courts have an independent obligation to
address issues of subject matter jurisdiction sua sponte and may
do so at any stage of the litigation; see Zambelli Fireworks
Mfg. Co., Inc. v. Wood, 592 F.3d 412, 418 (3d Cir. 2010)
("Federal courts are courts of limited jurisdiction, and when
there is a question as to our authority to hear a dispute, ‘it
is incumbent upon the courts to resolve such doubts, one way or
the other, before proceeding to a disposition on the merits.’”)
(citing Carlsberg Res. Corp. v. Cambria Sav. & Loan Ass’n, 554

F.2d 1254, 1256 (3d Cir. 1977)); and
WHEREAS, Defendant Hi-Power Cycles LLC, as the party
attempting to bring this matter before the Court, bears the
burden of proving that this Court has subject matter
jurisdiction.
Cir. 2007).

Frederico v. Home Depot, 507 F.3d 188, 193 (3d

If the Court lacks subject matter jurisdiction, it

must remand the case.

28 U.S.C. § 1447(c) (“If at any time

before final judgment it appears that the district court lacks
subject matter jurisdiction, the case shall be remanded.”); and
WHEREAS, the Amended Notice of Removal fails to allege the
type of corporate entity of Plaintiff/Subrogee State Farm Fire &
Casualty Company or its citizenship1; and
WHEREAS, the Third Circuit has held that the citizenship of
an LLC, partnership, or other unincorporated association is
determined by the citizenship of each of its members (see
Zambelli, 592 F.3d at 418) while a corporation is a citizen of
any State by which it has been incorporated and of the State
where it has its principal place of business. Mennen Co. v. Atl.
Ins. Co., 147 F.3d 287, 290 (3d Cir. 1990) (citing 28 U.S.C. §
1332); see also J & R Ice Cream Corp. v. Cal. Smoothie Licensing

1

For example, if State Farm is a corporation, Defendant Hi-Power Cycles must
allege State Farm’s state of incorporation and its principal place of
business. Hi-Power Cycles is again reminded that alleging “a” principal
place of business in insufficient (see Amended Notice of Removal ¶ 4), rather
Hi-Power Cycles must allege where State Farm has “its” principal place of
business. Additionally, Hi-Power Cycles cannot allege State Farm’s
citizenship “upon information and belief.” (Id.)

2

Corp., 31 F.3d 1259, 1265 n.3 (3d Cir. 1994) (alleging that a
corporation has “a” principal place of business in a given state
rather than alleging “its” principal place of business is
insufficient to establish diversity jurisdiction); and
WHEREAS, the Court also recognizes that jurisdictional
allegations made “upon information and belief,” are insufficient
to convince the Court that diversity exists between the parties,
see Vail v. Doe, 39 F. Supp. 2d 477, 477-78 (D.N.J. 1999); and
WHEREAS, the Court finding that the Amended Notice of
Removal therefore does not sufficiently establish that this
Court may exercise diversity jurisdiction over this matter; and
ACCORDINGLY, it is on this

7th

day of

March

, 2016,

ORDERED that Defendant High-Power Cycles LLC shall have ten (10)
days to amend the notice of removal to properly comply with 28
U.S.C. § 1332.

If Defendant fails to do so, this case will be

dismissed for lack of subject matter jurisdiction.

See Fed. R.

Civ. P. 12(h)(3).
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
At Camden, New Jersey

3