Atomo Coffee Inc v. Marquart et al
MINUTE ORDER: Plaintiff's motion to remand, docket no. 11 , is GRANTED. Defendants' motion to dismiss for lack of personal jurisdiction, docket no. 13 , is STRICKEN without prejudice to refile within twenty-one (21) days after the remand of this case is effectuated. Per LCR 3(i), case will be remanded on the 15th day following the date of this Order, on 1/24/2022. Authorized by Judge Thomas S. Zilly.(LH)
Case 2:21-cv-01374-TSZ Document 17 Filed 01/06/22 Page 1 of 2
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
ATOMO COFFEE, INC.,
SARA MARQUART; and NXFOODS
GMBH d/b/a QOA COMPANY,
The following Minute Order is made by direction of the Court, the Honorable
Thomas S. Zilly, United States District Judge:
Plaintiff’s motion to remand, docket no. 11, is GRANTED. Plaintiff
Atomo Coffee, Inc. is a Delaware corporation with its principal place of business in
Washington. See Compl. at ¶ 1 (docket no. 1-2). Defendant NxFoods GmbH d/b/a
QOA Company is a German limited liability company that is wholly owned by NxFoods,
Inc., a Delaware corporation. See Defs.’ Corp. Disclosure Stmt. (docket no. 4); Compl. at
¶ 3 (docket no. 1-2). Under Ninth Circuit jurisprudence, a limited liability company
(“LLC”) is a citizen of every state in which its members are citizens. See Johnson v.
Columbia Props. Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006). The Ninth Circuit
has not yet addressed whether this rule applies to the foreign equivalent of a limited
liability company, but a district court within the Ninth Circuit has treated a GmbH in the
same manner as an LLC for purposes of assessing diversity of citizenship. See Tele
Munchen Fernseh GmbH & Co. Produktionsgesellschaft v. All. Atlantis Int’l Distrib.,
LLC., No. CV 13-5834, 2013 WL 6055328, *3–4 (C.D. Cal. Nov. 15, 2013) (citing
Machason v. Diamond Fin. LLC, 347 F. Supp. 2d 53, 55 (S.D.N.Y. 2004), and Hunley
v. Glencore Ltd., Inc., No. 3:10-cv-455, 2012 WL 1071271, *9–10 (E.D. Tenn.
Mar. 29, 2012)); see also Mueller v. Potsch, No. 4:11 CV 47, 2013 WL 1290836, *1 n.1
MINUTE ORDER - 1
Case 2:21-cv-01374-TSZ Document 17 Filed 01/06/22 Page 2 of 2
1 (N.D. Ind. Mar. 28, 2013) (expressing doubt about whether a GmbH may be analogized
to a corporation, as opposed to an LLC). The analysis in Tele Munchen is consistent with
2 Carden v. Arkoma Assocs., 494 U.S. 185 (1990), in which the Supreme Court observed
that, by federal statute, a corporation is a citizen of its State of incorporation and the State
3 in which it has its principal place of business, see 28 U.S.C. § 1332(c), but no similar
provision has been made for other artificial entities, and the question of whether to afford
4 such treatment to enterprises other than corporations should be left to Congress. 1 See 494
U.S. at 196–97. Because plaintiff and defendant NxFoods GmbH are both citizens of
5 Delaware, the Court lacks diversity jurisdiction and this case must be remanded. The
Court declines to award any attorney’s fees or costs pursuant to 28 U.S.C. § 1447(c).
Defendants’ motion to dismiss for lack of personal jurisdiction, docket
7 no. 13, is STRICKEN without prejudice to refile within twenty-one (21) days after the
remand of this case is effectuated.
The Clerk is DIRECTED to send a copy of this Minute Order to all counsel
9 of record, to REMAND this matter to the King County Superior Court fifteen (15) days
after the date of this Minute Order, and to CLOSE this case.
Dated this 6th day of January, 2022.
NxFoods GmbH’s reliance on Cohn v Rosenfeld, 733 F.2d 625 (9th Cir. 1984), is misplaced.
Cohn predated Carden, and it relied on Puerto Rico v. Russell & Co., 288 U.S. 476 (1933),
which has been limited to the Puerto Rican entity known as sociedad en comandita by both
Carden and United Steelworkers of Am., AFL-CIO v. R.H. Bouligny, Inc., 382 U.S. 145, 151–52
(1965) (noting that the effect of Russell was to contract, not broaden, the jurisdiction of the
federal court in Puerto Rico). See Fellowes, Inc. v. Changzhou Xinrui Fellowes Office Eqpt. Co.,
759 F.3d 787, 789 (7th Cir. 2014) (“Russell and its juridical-entity approach cover the sociedad
en comandita and nothing else.”); see also id. at 789–90 (“Russell does not mean that limited
liability companies—organized within or outside the United States―have their own citizenships.
Having held . . . that an American LLC has the citizenship of every member-investor, we are not
about to establish a different rule for functionally identical entities established under other
MINUTE ORDER - 2
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