SunTrust Bank v. 890 Hendersonville Road, LLC et al

Filing 12

ORDER: CARDEN NOTICE - that plaintiff file and serve a Notice of Citizenship of LLC Defendant not later than June 11, 2010. Signed by Magistrate Judge Dennis Howell on 05/27/10. (emw)

IN THE UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF NORTH CAROLINA A S H E V IL L E DIVISION 1 :1 0 cv 5 0 S U N T R U S T BANK, ) ) P l a i n t if f , ) ) V s. ) ) 8 9 0 HENDERSONVILLE ROAD, LLC; ) J O E C. BRUMIT, II; CHARLES D. ) O W E N , III; and GREGORY A. EDNEY, ) ) D efen d a n ts. ) _______________________________ )

O R D E R : CARDEN N O T IC E

T H IS MATTER is before the court on its own consideration of its subject m atter jurisdiction. In its Complaint, plaintiff alleges that the LLC defendant "is a N o rth Carolina limited liability company with an office and place of business in B u n co m b e County." Compl., at ¶ 2. While plaintiff has alleged diversity as the

ju r is d ic tio n a l basis for this action it has not alleged the names of the members of such L L C and their respective residences. The state of incorporation and the place where a limited liability corporation does business does not, on its face, satisfy the req u irem en ts for either pleading or determining diversity. Thus, the Complaint co n tain s a patent defect that goes to the subject matter jurisdiction of this court. A partnership is a citizen of all states in which its constituent partners are c itiz en s . Carden v. Arkoma Associates, 494 U.S. 185, 195 (1990). In turn, a limited lia b ility company is a citizen of all states in which its constituent members are c itiz en s . Id. In this case, neither the Complaint nor the Answer informs the court as to the citizenship of the LLC's members. As the parties are aware, the court has an

affirmative duty to question its subject-matter jurisdiction, even where the parties have n o t raised the issue. Lack of subject-matter jurisdiction may be raised at any time eith er by a litigant or the court. Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S. 379, 3 8 2 (1884). The ability of the court to independently address subject-matter

ju risd ictio n is important to finality inasmuch as a litigant, even one who remains silen t on the issue of jurisdiction, may wait until they receive an adverse judgment fro m a district court and raise the issue of subject-matter jurisdiction for the first time o n appeal, thereby voiding the judgment. Capron v. Van Noorden, 2 Cranch 126, 127, 2 L.Ed. 229 (1804). The Federal Rules of Civil Procedure anticipate this issue and p ro v id e that "[w]henever it appears by suggestion of the parties or otherwise that the co u rt lacks jurisdiction of the subject matter, the court shall dismiss the action." F ed .R .C iv .P . 12(h)(3). When a court considers its subject-matter jurisdiction, the b u r d e n of proof is on the plaintiff. Adams v. Bain, 697 F.2d 1213, 1219 (4 th Cir. 1 9 8 2 ). In accordance with the reasoning of Adams and Carden, plaintiff shall be r eq u ir ed to file with the court a Notice of Citizenship of Defendant, in which they n am e and identify the citizenship of all the LLC's constituent members or partners, an d , for any such constituent members or partners that are also LLCs or partnerships, to identify the citizenship of their respective constituent members or partners, until all s u c h constituents are fully identified. See Carden, supra. Defendants may, of course, c o n te st any such assertion, but the court anticipates that the notice will be a c o o p e ra tiv e effort. The parties may wish to review the recent decision of the district co u rt in Mecklenburg County v. Time Warner Entertainment-Advance/Newhouse

Partnership, 2010 WL 391279 (W.D.N.C. Jan. 26, 2010). Such filing shall be made n o t later than June 11, 2010.

ORDER IT IS, THEREFORE, ORDERED that plaintiff file and serve a Notice of C itizen sh ip of LLC Defendant not later than June 11, 2010.

Signed: May 27, 2010