EAST COAST BUILDING SERVICES, LLC. v. MARCO CONTRACTORS, INC.
Filing
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OPINION filed. Signed by Judge Mary L. Cooper on 12/6/2012. (mmh)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
EAST COAST BUILDING SERVICES,
LLC,
CIVIL ACTION NO. 12-7445 (MLC)
O P I N I O N
Plaintiff,
v.
MARCO CONTRACTORS, INC.,
Defendant.
THE PLAINTIFF, East Coast Building Services, LLC (“ECBS”),
brought this action against the defendant, Marco Contractors, Inc.
(“Marco”) on December 4, 2012.
Compl.)
(See generally dkt. entry no. 1,
ECBS raises claims for breach of contract, quasi-contract,
and promissory estoppel.
(See id. at 7-9.)
It asserts that
jurisdiction is proper under 28 U.S.C. § 1332 (“Section 1332”).
(See id. at 2.)
ECBS asserts that it “is a New Jersey limited liability
company, organized and existing under the laws of the State of New
Jersey, with its principal place of business located at 210 Broad
Street in the City of Red Bank, County of Monmouth, and State of
New Jersey.”
(Compl. at ¶ 1.)
But it fails to properly allege its
citizenship.
A limited liability company is an unincorporated
association that is deemed to be a citizen of each state in which
its members are citizens, not the states in which it was formed or
has its principal place of business.
See Zambelli Fireworks Mfg.
Co. v. Wood, 592 F.3d 412, 418-20 (3d Cir. 2010).
ECBS, by failing to properly allege its citizenship, has
failed to demonstrate that there was complete diversity of
citizenship in the action when it was commenced; it has failed to
demonstrate that it is a citizen of a different state in relation
to Marco.
See 28 U.S.C. § 1332(a)(1); Grupo Dataflux v. Atlas
Global Grp., 541 U.S. 567, 571 (2004) (jurisdictional challenges
are measured “against the state of facts that existed at the time
of filing”);
Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005).
The Court will thus dismiss the Complaint, but will do so without
prejudice to ECBS to either -- within thirty days -- (1) recommence
the action in state court, as limitations periods are tolled by the
filing of a federal complaint, see Jaworowski v. Ciasulli, 490 F.3d
331, 333-36 (3d Cir. 2007), Galligan v. Westfield Ctr. Serv., 82
N.J. 188, 191-95 (1980); or (2) move in accordance with both the
Federal Rules of Civil Procedure and the Local Civil Rules to
reopen the action in federal court, with documentation that
properly demonstrates its own citizenship.
ECBS is advised that if it opts to move to reopen the action
in federal court, then it does so at its own peril as the Court
will not further extend the thirty-day period to proceed in state
court.
ECBS is also advised that any motion to reopen the action
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must properly: (1) demonstrate its own citizenship as it existed on
December 4, 2012; (2) provide a list of all of ECBS members as of
December 4, 2012, analyze the citizenship of all of those members,
and provide supporting documentation and affidavits from those with
knowledge of its structure; and (3) show that there is jurisdiction
under Section 1332.
As ECBS is represented by counsel, the Court
“should not need to underscore the importance of adequately
pleading and proving diversity”.
CGB Occ. Therapy v. RHA Health
Servs., 357 F.3d 375, 382 n.6 (3d Cir. 2004).
ECBS, if moving to reopen the action, must provide a definite
response as to where all members are citizens.
A response that
merely demonstrates where a member resides, is licensed, or has a
place of business will not suffice, as such a response will not
properly invoke subject matter jurisdiction.
See McCracken v.
ConocoPhillips Co., 335 Fed.Appx. 161, 162-63 (3d Cir. 2009); Cruz
v. Pennsylvania, 277 Fed.Appx. 160, 162 (3d Cir. 2008).
The Court
specifically advises ECBS that a response that is based upon
information and belief, or an assertion that is not specific (e.g.,
citizen of “a state other than Pennsylvania”) will not suffice.
See Vail v. Doe, 39 F.Supp.2d 477, 477 (D.N.J. 1999) (stating
citizenship allegation that is based upon information and belief
“does not convince the Court that there is diversity among the
parties”).
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THE COURT further advises ECBS, if moving to reopen the
action, to refrain from asserting confidentiality on behalf its
members or membership layers, as that would improperly thwart the
Court’s efforts to analyze subject matter jurisdiction.
See
Belleville Catering Co. v. Champaign Mkt. Place, 350 F.3d 691, 693
(7th Cir. 2003) (stating such details cannot be kept confidential
from the judiciary); see also Emerald Investors Trust v. Gaunt
Parsippany Partners, 492 F.3d 192, 207 n.22 (3d Cir. 2007)
(rejecting, in jurisdictional analysis, partnership’s “attempts to
keep the identity of its limited partners confidential insofar as
possible”, as “the district court must know who they are and where
they are citizens and its need for that information will trump
[that partnership’s] policies”); Wonders Trust v. Deaton, Inc., 200
F.R.D. 473, 480 (M.D. Fla. 2000) (sanctioning party for failure to
cooperate with court’s jurisdictional inquiry, as party “should not
be permitted, through recalcitrance, to prevent this Court from
determining its own subject-matter jurisdiction”).
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THE COURT, for good cause appearing, will issue an appropriate
order and judgment.1
s/ Mary L. Cooper
.
MARY L. COOPER
United States District Judge
Date:
December 6, 2012
1
The Court notes that venue may not be proper, as: (1) the
contracts at issue are controlled by Pennsylvania law (see dkt.
entry no. 1-2, Contract at 6 (“This Subcontract shall be governed
by the Laws of the Commonwealth of Pennsylvania, without regard to
its choice of law provisions.”)); and (2) it appears that the work
underlying the contracts occurred in New York (see Compl. at 3-7).
If the action is reopened here, the Court may address the issue of
venue when the defendant appears.
The Court also notes that the Contract provides for
arbitration of “[a]ll claims or disputes between [ECBS] and [Marco]
arising out of or related to [the Contract] or the breach thereof
or either party’s performance of their obligation under [the
Contract]”. (Contract at 6.) If the action is reopened here, and
if Marco asserts as an affirmative defense that the action should
be referred to an arbitrator, the Court would entertain a motion to
compel arbitration by Marco.
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