United States District Court, E.D. New York
Jaroslawicz & Jaros Attorneys for Plaintiff, David
Jaroslawicz, Esq., Norman E. Frowley, Esq.
P.C. Attorneys for Defendant JAF Carrier, LLC, s/h/a JAF
Carrier, L.L.C. d/b/a Bagir Trucking, Martin B. Adams, Esq.
Wilson, Elser, Moskowitz, Edelman & Dicker LLP Attorneys
for Defendants C.H. Robinson Company, Inc., C.H. Robinson
Transportation Company Inc. and C.H. Robinson Worldwide, Inc.
Lindsay J. Kalick, Esq.
Duffy Alonso & Faley Attorneys for Defendant Jetro Cash
and Carry Enterprises, LLC s/h/a Jetro Cash and Carry
Enterprise, LLC, Mark Healy, Esq.
MEMORANDUM & ORDER
R. Hurley, United States District Judge
an action to recover for personal injuries sustained by
Plaintiff Winona Mae Palmiotti (“Plaintiff” or
“Palmiotti”). Presently before the Court is a
motion by the defendants challenging the existence of
diversity subject matter jurisdiction and a motion by
Plaintiff to amend her complaint. For the reasons set forth
below, defendants' motion is granted to the extent that
this matter is remanded to the Supreme Court, Suffolk County,
and Plaintiff's motion is denied.
commenced in state court, the complaint named as defendants
JAF Carrier, LLC, s/h/a JAF Carrier, L.L.C. d/b/a Bagir
Trucking (“JAF”), C.H. Robinson Company, Inc.,
C.H. Robinson Transportation Company Inc. and C.H. Robinson
Worldwide, Inc. (collectively “Robinson
Defendants”) and Jose Caranza a/k/a Jose Cruz
(“Caranza”). That complaint identified the
parties as follows: Plaintiff as a resident of New York; JAF
as a “foreign limited liability company”
organized under the laws of Virginia; and the Robinson
defendants as foreign corporations organized under the laws
of Minnesota (Company and Transportation) and Delaware
(Worldwide). On April 27, 2015, the Robinson Defendants
removed the action to this Court on the ground of diversity
stipulation of the parties approved by the Court, plaintiff
filed an amended complaint on December 3, 2015 adding Jetro
Cash and Carry Enterprise, LLC (“Jetro”) as a
defendant. The amended complaint alleges that Jetro “is
a domestic limited liability company, duly organized and
existing under and by virtue of the laws of the State of New
York.” (DE 25 at ¶ 11.)
after answers to the amended complaint were filed, JAF sought
leave to file a motion directed to subject matter
jurisdiction and seeking dismissal of this action and its
remand to state court. Similar requests by Jetro and the
Robinson Defendants soon followed, as well as a request by
plaintiff to file a motion to amend her complaint. Leave was
granted and the following motions have been filed: (1) a
motion to dismiss by JAF, in which the Robinson Defendants
join; (2) a motion to dismiss and remand by Jetro; and (3) a
motion to amend the complaint by plaintiff. The motions by
JAF and Jetro both focus on Jetro's citizenship.
Standard of Review
Federal Rule of Civil Procedure 12(b)(1)
case is properly dismissed for lack of subject matter
jurisdiction under Rule 12(b)(1) when the district court
lacks the statutory or constitutional power to adjudicate
it.” Makarova v. United States, 201 F.3d 110,
113 (2d Cir. 2000). “The party invoking federal
jurisdiction bears the burden of proving facts to establish
that jurisdiction.” Linardos v. Fortuna, 157
F.3d 945, 947 (2d Cir. 1998). “In resolving a motion to
dismiss for lack of subject matter jurisdiction, the Court
may consider affidavits and other materials beyond the
pleadings to resolve jurisdictional questions.”
Cunningham v. Bank of New York Mellon, N.A., 2015 WL
4101839, * 1 (E.D.N.Y. July 8, 2015) (citing Morrison v.
Nat'l Australia Bank, Ltd., 547 F.3d 167, 170 (2d
28 U.S.C. § 1447
U.S.C.§ 1447 provides for the procedure after a case has
been removed to federal court. Subsection (c) explainns that
“[i]f at any time before final judgment it appears that
the district court lacks subject matter jurisdiction, the
case shall be remanded.” 28 U.S.C.§ 1447(c). It is
the appropriate standard to apply where, as here, a complaint
has been amended to add a party and it is claimed that the
amendment has destroyed complete diversity thereby divesting
the court of jurisdiction. Rosenfeld v. Lincoln Life Ins.
Co., - F.Supp.3d -, 2017 WL 945114, *2 (E.D.N.Y. Mar. 9,
Principles Regarding Diversity Jurisdiction
jurisdiction exists when all plaintiffs are citizens of
states diverse from those of all defendants. Pennsylvania
Pub. Sch. Employees' Ret. Sys. v. Morgan Stanley &
Co., Inc., 772 F.3d 111, 117- 18 (2d Cir. 2014) (citing
Exxon Mobil Corp. v. Allapattah Servs., Inc., 545
U.S. 546, 553 (2005)). The party asserting diversity
jurisdiction has the burden to prove the same.
Pennsylvania Pub. Sch. Employees' Ret. Sys., 772
F.3d at 118. "[D]iversity of citizenship should be
distinctly and positively averred in the pleadings, or should
appear with equal distinctness in other parts of the
record[.]" Leveraged Leasing Admin. Corp. v.
PacificCorp Capital, Inc., 87 F.3d 44, 47 (2d Cir. 1996)
(internal quotation marks omitted). "A conclusory
allegation in the Complaint regarding diversity of
citizenship does not extinguish the Court's
responsibility to determine, on its own review of the
pleadings, whether subject matter jurisdiction exists."
Richmond v. International Bus. Machs. Corp., 919
F.Supp. 107, 108 (E.D.N.Y. 1996), aff'd, 841
F.2d 1116 (2d Cir. 1988). For the purpose of diversity
jurisdiction, "a statement of the parties' residence
is insufficient to establish their citizenship."
Davis v. Cannick, 2015 WL 1954491, at *2 (E.D.N.Y.
2015); Young-Gibson v. Patel, 476 F.App'x 482,
483 (2d Cir. June 12, 2012)).
purposes of diversity jurisdiction, [an individual's]
citizenship depends on his domicile.” Linardos v.
Fortuna, 157 F.3d 945, 948 (2d Cir. 1998).
corporation is deemed to be a citizen of the state in which
it is incorporated and of the state or foreign state where it
has its principal place of business. 28 U.S.C. 1332(c)(1);
Carter v. HealthPort Tech., LLC, 882 F.3d 47, 60 (2d
Cir. 2016). “A corporation's principal place of
business under § 1332 is ‘the place where a
corporation's officers direct, control, and coordinate
the corporation's activities.' In practice, this
‘should normally be the place where the corporation
maintains its headquarters-provided that the headquarters is
the actual center of direction, control, and coordination,
i.e., the nerve center.'” OneWest Bank, N.A. v.
Melina, 827 F.3d 214, 218 (2d Cir. 2016) (quoting
Hertz Corp. v. Friend, 559 U.S. 77, 92-93 (2010)).
citizenship of a limited liability company
(“LLC”) is determined by the citizenship of each
of its members. See, e.g., Bayerische Landesbank, New
York Branch v. Aladdin Capital Management LLC, 692 F.3d
42, 49 (2d Cir. 2012); Handelsman v. Bedford Vill.
Assocs. Ltd P'ship, 213 F.3d 48, 51-52 (2d Cir.
2000). “A complaint premised upon diversity of
citizenship must allege the citizenship of natural persons
who are members of a limited liability company and the place
of incorporation and principal place of business of any
corporate entities who are members of the limited liability
company.” New Millennium Capital Partners, III, LLC
v. Juniper Grp. Inc., 2010 WL 1257325, at *1 (S.D.N.Y.
Mar. 26, 2010), (citing Handelsman, 213 F.3d at
51-52); Bishop v. Toys “R” Us-NY LLC,
414 F.Supp.2d 385, 389 n.1 (S.D.N.Y. 2006),
aff'd, 385 ...