Meisner v. Zymogenetics, Inc et al
Filing
79
OPINION and ORDER denying 76 Motion to Vacate. Signed by Honorable Cameron McGowan Currie on 6/4/2019.(cbru, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Rhonda Meisner,
C/A. No. 3:15-3523-CMC-PJG
Plaintiff
v.
Zymogenetics,
Inc.,
a
wholly-owned
subsidiary of Bristol Myers Squibb, Inc.;
Zymogenetics, LLC, a wholly-owned
subsidiary of Zymogenetics, Inc.; Bristol
Myers Squibb, Inc.; Tracey Caldarazzo; Jeff
Fortino; Stephanie Lewis, individually and as
a member of Jackson Lewis, PC, Greenvillle;
Jackson Lewis LLP, Greenville; Jackson
Lewis, PC; John Does and Jane Does 1-10
(whose name is unknown or as yet discovered),
Opinion and Order on
Plaintiff’s Motion to Vacate
Defendants.
This matter is before the court on Plaintiff’s “Motion to vacate the denial of her motion to
remand based on extrinsic fraud.” ECF No. 76. Plaintiff relies on alleged “extrinsic fraud
perpetrated . . . by defendants” relating to the existence of diversity jurisdiction. Id. at 1 (expressly
relying on S.C. R. Civ. P. 60(b)). 1 More specifically, she argues defense counsel committed fraud
because one or more Defendants, their law firm, and the defense attorney who signed pleadings
“understood that limited liability companies that are owned by corporations have as their
citizenship all the shareholders [of the corporation] which in this case is citizens of all fifty
states[.]” Id. at 3. She further alleges Defendant “Zymogenetics, LLC . . . has, as its members,
1
The court deems the motion to be pursued under the corresponding federal rule, Rule 60(b) of
the Federal Rules of Civil Procedure.
South Carolina citizens and residents based on their status as shareholders of Bristol Myers Squibb,
Inc.” Id.
While Defendants raise other arguments that might require denial of Plaintiff’s motion, the
court declines to reach those arguments because Plaintiff’s central legal premise, that an LLC with
an upstream, corporate member is a citizen of the same states as the corporation’s shareholders, is
flawed. 2 Plaintiff is correct that the citizenship of an artificial entity other than a corporation is
the same as the citizenship of all of its members. See Carden v. Arkoma Associates, 494 U.S. 185,
189 (1990) (holding limited partnerships are citizens of the same states as all partners including
2
Defendants argue the motion is untimely and Plaintiff has failed to point to any fraud. While
the court declines to rule on either argument, it notes the following weaknesses in both.
Timeliness. A motion for relief from “a final judgment, order or proceeding” based on
“fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an
opposing party” must be made “no more than a year after the entry of the judgment or order or the
date of the proceeding.” Fed. R. Civ. P. 60(b)(3), (c)(1). The present motion was filed more than
a year after the last preceding docket entry. See ECF No. 75 (November 1, 2017 mandate and
judgment on appeal); ECF No. 76 (motion to vacate). The specifically-challenged order or orders
were entered substantially earlier. See ECF No. 22 (April 7, 2016 order denying remand); ECF
Nos. 53, 54 (September 15, 2016 order and judgment dismissing action); ECF No. 65 (November
28, 2016 order denying motion to alter judgment). Thus, regardless which prior entry is
challenged, the motion appears to be untimely.
Fraud. Even if Plaintiff’s central legal premise was correct, and it is not, she has failed to
present any evidence Defendants either withheld information or made misrepresentations that
precluded her from making her present argument prior to entry of judgment. To the contrary,
Plaintiff herself alleged and Defendants disclosed information reflecting both that Bristol Myers
Squibb, Inc. (“BSM”) was an upstream, indirect “owner” of Zymogenetics, LLC, and that BSM
was a publicly traded company. See ECF No. 1 at 5; ECF No. 1-1 ¶¶ 4, 6. Thus, Plaintiff has
failed to point to any misrepresentation, fraud, or misconduct that might justify her belated
jurisdictional argument.
2
limited partners); Gen. Tech. Applications, Inc. v. Exro Ltda, 388 F.3d 114, 121 (4th Cir. 2004)
(holding limited liability company’s “citizenship is that of its members”).
Where Plaintiff errs is in ignoring the test for determining citizenship of a corporation for
purposes of diversity jurisdiction. That test is established by 28 U.S.C. § 1332(c), which provides
“a corporation shall be deemed to be a citizen of every State and foreign state by which it has been
incorporated and of the State or foreign state where it has its principal place of business[.]” 28
U.S.C. § 1332(c)(1). Plaintiff offers neither argument nor evidence that any corporate member of
Zymogenetics, LLC is incorporated in or has its principal place of business in South Carolina (the
state of which Plaintiff is a citizen) or that it has any members that are not corporations. She relies
solely on an argument Zymogenetics, LLC is a citizen of South Carolina because shareholders of
BSM, which Plaintiff characterizes as an upstream corporate member of Zymogenerics, LLC,
include citizens of South Carolina. This argument fails as it ignores the statutory test for
determining citizenship of a corporation.
CONCLUSION
For reasons set forth above, Plaintiff’s motion is denied.
IT IS SO ORDERED.
s/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
Senior United States District Judge
Columbia, South Carolina
June 4, 2019
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