Finger Lickin Brands v. US Foods et al

Filing 21

MEMORANDUM DECISION AND ORDER-the court requests that Plaintiff plead the citizenship of each of its members. Additionally, Plaintiff must make a good-faith allegation about the citizenship of the Doe defendants. To the extent the Doe defendants are legal entities other than a corporation, a good-faith allegation about the citizenship of each member of such entities must be alleged. The requested information shall be filed on or before September 30, 2016. If diversity jurisdiction is not established, this case will be dismissed. See Order for further details. Signed by Judge Clark Waddoups on 9/8/16. (jmr)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

FINGER LICKIN’ BRANDS, LLC d.b.a.
DICKEY’S BARBECUE PIT OF UTAH,

MEMORANDUM DECISION
AND ORDER

Plaintiff,
Case No. 2:16-cv-745
vs.
Judge Clark Waddoups
US FOODS, INC., ECOLAB, INC., and JOHN
DOES 1-3,
Defendants.

Plaintiff Finger Lickin’ Brands, LLC filed this action on June 30, 2016. It asserts this
court has jurisdiction based on diversity of citizenship. “Subject-matter jurisdiction, because it
involves a court’s power to hear a case, can never be forfeited or waived.” Arbaugh v. Y&H
Corp., 546 U.S. 500, 514 (2006) (quotations and citation omitted). Consequently, courts “have
an independent obligation to determine whether subject-matter jurisdiction exists, even in the
absence of a challenge from any party.” Id. (citation omitted). “Congress has exercised its
prerogative to restrict the subject-matter jurisdiction of federal district courts based on a wide
variety of factors . . . .” Id. at 515 n.11. Diversity jurisdiction requirements are one such
limitation. Kuri v. Matrix Ctr., No. 16-3031, 2016 U.S. App. LEXIS 9294, at *2 (10th Cir. May
18, 2016).

“[F]or entities other than corporations,” the court’s “diversity jurisdiction in a suit by or
against [an] entity depends on the citizenship of . . . each of its members.” Penteco Corp. Ltd.
Partnership-1985A v. Union Gas Sys., Inc., 929 F.2d 1519, 1523 (10th Cir. 1991). Moreover,
“where an LLC has, as one of its members, another LLC, the citizenship of unincorporated
associations must be traced through however many layers of partners or members there may be
to determine the citizenship of the LLC.” Lincoln Benefit Life Co. v. AEI Life, LLC, 800 F.3d 99,
105 n.16 (3d Cir. 2015) (quotations and citation omitted); see also D.B. Zwirn Special
Opportunities Fund, L.P. v. Mehrotra, 661 F.3d 124, 126 (1st Cir. 2011); V&M Star, LP v.
Centimark Corp., 596 F.3d 354, 356 (6th Cir. 2010); Hart v. Terminex Int’l, 336 F.3d 541, 543
(7th Cir. 2003).
The Supreme Court also has stated “when a plaintiff sues more than one defendant in a
diversity action, the plaintiff must meet the requirement of the diversity statute for each
defendant or face dismissal.” Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 829 (1989)
(emphasis in original). When a case originates in federal court (as opposed to being removed to
federal court), the general rule is “the diverse citizenship of the fictitious defendants must be
established by the plaintiff in order to continue a federal court action.” 1 Lee v. Airgas – Mid
South, Inc., 793 F.3d 894 (8th Cir. 2015) (citing 13F Charles Alan Wright, et al., Federal Practice
& Procedure, § 3642 (3d ed. 2009)). This court has followed the general rule and requires that a
good-faith allegation be made as to the citizenship of Doe defendants. See e.g., Van de Grift v.
Higgins, 757 F. Supp. 2d 1139, 1141 (D. Utah 2010); Pia v. Supernova Media, Inc., No. 2:09-cv840, 2010 U.S. Dist. LEXIS 120050 (D. Utah Nov. 8, 2010).
Based on the foregoing, the court requests that Plaintiff plead the citizenship of each of
1

If a case is removed to federal court, an exception exists for Doe defendants. See 28 U.S.C. §
1441(b)(1).
2

its members. Additionally, Plaintiff must make a good-faith allegation about the citizenship of
the Doe defendants. To the extent the Doe defendants are legal entities other than a corporation,
a good-faith allegation about the citizenship of each member of such entities must be alleged.
The requested information shall be filed on or before September 30, 2016.

If diversity

jurisdiction is not established, this case will be dismissed.
SO ORDERED this 8th day of September, 2016.
BY THE COURT:

_______________________________
Clark Waddoups
United States District Judge

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