Legacy Franchise Group LLC v. Break of Day, Inc. et al

Filing 6

ORDER that defendants may have until 11/25/2013 to show subject matter jurisdiction under 28U.S.C. 1332. Signed by District Judge Barbara B. Crabb on 11/7/2013. (voc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - LEGACY FRANCHISE GROUP LLC
d/b/a COUNTRY KITCHEN INTERNATIONAL,
ORDER
Plaintiff,
13-cv-604-bbc
v.
BREAK OF DAY, INC., MITCHELL LAVEY,
DENNIS J. LAVEY and MARIE DOIL,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - In this civil action, plaintiff Legacy Franchise Group LLC is suing defendants Break
of Day, Inc., Mitchell Lavey, Dennis J. Lavey and Marie Doil for breach of contract.
Defendants have removed this case, relying on 28 U.S.C. § 1332 as a basis for jurisdiction.
This statute requires that defendants show they are citizens of different states from plaintiff,
and that the amount in controversy exceeds $75,000. In the course of reviewing the notice
of removal and complaint to insure the existence of jurisdiction as I am required to do,
McCready v. White, 417 F.3d 700, 702 (7th Cir. 2005), I discovered that defendants failed
to properly identify plaintiff’s citizenship. It appears that defendants have alleged sufficient
information to satisfy § 1332’s other requirements.
Relying on the complaint filed in state court, defendants allege that plaintiff is a
“limited liability company with its principal place of business in Wisconsin.” Dkt. #1, at

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2. However, the citizenship of a limited liability company is not determined by its principal
place of business or the state in which it was formed, but by the citizenship of each of its
members. E.g., Copeland v. Penske Logistics LLC, 675 F.3d 1040, 1043 (7th Cir. 2012);
Cosgrove v. Bartolotta, 150 F.3d 729, 731 (7th Cir. 1998).

See also Thomas v.

Guardsmark, LLC, 487 F.3d 531, 534 (7th Cir. 2007) (“[A]n LLC’s jurisdictional statement
must identify the citizenship of each of its members as of the date the complaint or notice
of removal was filed, and, if those members have members, the citizenship of those members
as well.”).
Without information on plaintiff’s citizenship, I cannot determine whether this court
has subject matter jurisdiction under 28 U.S.C. § 1332. As the proponents of jurisdiction,
defendants bear the burden of showing that this court may exercise subject matter
jurisdiction. Smart v. Local 702 International Brotherhood of Electrical Workers, 562 F.3d
798, 802-03 (7th Cir. 2009). Accordingly, I will give defendants an opportunity to file
evidentiary materials showing the citizenship of plaintiff’s members.

ORDER
IT IS ORDERED that defendants Break of Day, Inc., Mitchell Lavey, Dennis J. Lavey
and Marie Doil may have until November 25, 2013, to show that subject matter jurisdiction
is present under 28 U.S.C. § 1332. If defendants fail to respond by that date, I will remand

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this the case for lack of jurisdiction.
Entered this 7th day of November, 2013.
BY THE COURT:
/s/
____________________
BARBARA B. CRABB
District Judge

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