ORTIZ et al v. K-HOVNANIAN HOMES, INC. et al

Filing 3

OPINION filed. Signed by Judge Mary L. Cooper on 5/28/2013. (eaj)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
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Plaintiffs,
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v.
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K-HOVNANIAN HOMES, INC., d/b/a :
K-HOVNANIAN FOUR SEASONS,
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et al.,
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Defendants.
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EDGARDO ORTIZ, et al.,

CIVIL ACTION NO. 13-3228 (MLC)
O P I N I O N

THE PLAINTIFFS (1) brought this action on May 22, 2013, to
recover damages for personal injuries against defendants named as
K-Hovnanian Homes, Inc., d/b/a K-Hovnanian Four Seasons
(“Hovnanian Entity”), and Anchor Wood Framing Corp. (“AWF”), and
(2) assert jurisdiction under 28 U.S.C. § (“Section”) 1332(a)(1).
(See dkt. entry no. 1, Compl. at 1-2.)
dismiss the Complaint without prejudice.

The Court intends to
See Fed.R.Civ.P.

12(h)(3) (instructing court to dismiss complaint if jurisdiction
is lacking).
THE PLAINTIFFS, pursuant to their own allegations and the
Court’s own research, are deemed to be citizens of Pennsylvania.
(See Compl. at 1.)
BUT THE PLAINTIFFS merely assert that (1) the Hovnanian
Entity “is a corporation who regularly conducts business in the
state of New Jersey at the [New Jersey] address [listed on the
Complaint]”, (2) AWF “is a New Jersey Corporation who regularly

conducts business in the state of New Jersey at the [New Jersey]
address [listed on the Complaint]”, and (3) “Defendants . . . are
corporations who are registered to do business in New Jersey”.
(Id.)

Assuming that the Hovnanian Entity and AWF are indeed

corporations, the plaintiffs have failed to allege the states in
which each defendant (1) is incorporated, and (2) has “its
principal place of business”, as opposed to an address where each
defendant regularly conducts business.

28 U.S.C. § 1332(c)(1);

see Hertz Corp. v. Friend, 130 S.Ct. 1181, 1185-86, 1192-93
(2010); S. Freedman & Co. v. Raab, 180 Fed.Appx. 316, 320 (3d
Cir. 2006); see also Jenkins v. Farmers New Century Ins. Co., No.
08-1398, 2008 WL 2997152, at *1 (M.D. Pa. July 31, 2008)
(pointing out that allegation that a corporation “regularly
conducts business” in a particular place “do[es] not suffice in
the requirement of a corporation’s principal place of business”).
THE PLAINTIFFS have failed to show that complete diversity
of citizenship exists here.

See Lincoln Prop. Co. v. Roche, 546

U.S. 81, 89 (2005) (requiring complete diversity between each
plaintiff and each defendant).

Thus, the Court will dismiss the

Complaint, but will do so without prejudice to the plaintiffs to
either – within thirty days – (1) recommence the action in state
court, as the limitations period for the cause of action is
tolled by the filing of a federal complaint, see Jaworowski v.
Ciasulli, 490 F.3d 331, 333-36 (3d Cir. 2007); Galligan v.

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Westfield Ctr. Serv., 82 N.J. 188, 191-95 (1980), or (2) move in
accordance with the Federal Rules of Civil Procedure and the
Local Civil Rules to reopen the action in federal court, with
documentation properly demonstrating the citizenship of each
defendant.

If the plaintiffs opt to move to reopen, then they do

so at their own peril, as the Court will not further extend the
thirty-day period to proceed in state court.
THE PLAINTIFFS are advised – if they opt to move to reopen –
that jurisdiction is measured “against the state of facts that
existed at the time of filing”.

Grupo Dataflux v. Atlas Global

Grp., 541 U.S. 567, 571 (2004).

Thus, the plaintiffs must

demonstrate (1) that the Hovnanian Entity and AWF are indeed
corporations, (2) the citizenship of each of these defendants by
proving the states in which they were incorporated and had their
principal places of business on May 22, 2013, i.e., provide
supporting documentation, certificates of incorporation, and
affidavits from those with knowledge of the structure of these
defendants, and (3) that there is jurisdiction under Section
1332.

The Court advises the plaintiffs that they must

specifically assert citizenship as it existed on May 22, 2013.
THE COURT cautions the plaintiffs — if they opt to move to
reopen — against restating the allegations from the Complaint.
The Court also advises the plaintiffs that an allegation based
upon information and belief, an assertion that is not specific

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(e.g., citizen of “a state other than Pennsylvania”), or a
request for time to discern jurisdiction will result in denial of
a motion to reopen, as they should have ascertained jurisdiction
before choosing to bring an action in federal court.

See

Freedman, 180 Fed.Appx. at 320; 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”).

As the plaintiffs are

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).

The plaintiffs’ “lack of care in invoking the

District Court’s jurisdiction is regrettable”.

McNair v. Synapse

Grp., 672 F.3d 213, 219 n.4 (3d Cir. 2012).1
THE COURT will issue an appropriate order and judgment.

s/ Mary L. Cooper
MARY L. COOPER
United States District Judge
Dated:

May 28, 2013

1

If the Hovnanian Entity is actually a limited liability
company, then the plaintiffs are advised that limited liability
companies are (1) unincorporated associations, and (2) deemed to
be citizens of each state in which their members are citizens,
not the states in which they were formed or have their principal
places of business. Zambelli Fireworks Mfg. Co. v. Wood, 592
F.3d 412, 418-20 (3d Cir. 2010). The citizenship of each
membership layer must be specifically traced and analyzed to
determine a limited liability company’s citizenship. Id. at 420.
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