United States District Court, S.D. New York
OPINION & ORDER
H. STEIN, U.S. DISTRICT JUDGE.
personal injury action was initiated in the Supreme Court of
the State of New York, Bronx County; both defendants have
since timely filed a notice of removal based upon the alleged
diversity of the parties. Because neither the Notice of
Removal (ECF No. 1) nor the Verified Complaint in the state
action (ECF No. 1, Ex. A) alleges facts sufficient to
establish the citizenship of each party, the Court seeks
affidavits from each party to verify whether federal subject
matter jurisdiction exists over this matter.
Nikia Olivia Mitchell commenced this action against
defendants City Express Limousine, LLC and Jamir Udin by
filing a verified complaint in the Supreme Court of the State
of New York, Bronx County, on January 17, 2017. (Verified
Complaint, ECF No. 1, Ex. A.) Six months later, defendants
timely filed a Notice of Removal,  in which they asserted that
this Court has jurisdiction over the action pursuant to 28
U.S.C. § 1332, the diversity jurisdiction statute
because "[t]here is complete diversity of citizenship
and the amount in controversy exceeds $75, 000, exclusive of
interest and costs." (Notice of Removal, ECF No. 1
the "obligation of a court, on its own motion, to
inquire as to subject matter jurisdiction and satisfy itself
that such jurisdiction exists." Da Silva v. Kinsho
Int'l Corp., 229 F.3d 358, 361-62 (2d Cir. 2000). If
a court determines that subject matter jurisdiction is
lacking "at any time, " it must "dismiss the
action." Fed.R.Civ.P. 12(h)(3).
jurisdiction exists "where the matter in controversy
exceeds the sum or value of $75, 000, exclusive of interest
and costs, and is between citizens of different States."
28 U.S.C. § 1332(a)(1). The citizenship of an individual
is determined not by his or her residence, but by his or her
domicile - "the place where a person has his [or her]
true fixed home and principal establishment, and to which,
whenever he [or she] is absent, he [or she] has the intention
of returning." See Palazzo v. Corio, 232 F.3d
38, 42 (2d Cir. 2000) (internal quotations and citations
omitted). A corporation is a citizen of "any State by
which it has been incorporated and of the State where it has
its principal place of business." 28 U.S.C. §
1332(c)(1). A limited liability company "takes the
citizenship of each of its members." Bayerische
Landesbarik, N.Y. Branch v. Aladdin Capital Mgmt. LLC,
692 F.3d 42, 49 (2d Cir. 2012) (citing Handelsman v.
Bedford Vill. Assocs. Ltd. P'ship, 213 F.3d 48,
51-52 (2d Cir. 2000)).
the amount-in-controversy requirement for diversity
jurisdiction is fulfilled because plaintiff's N.Y.
C.P.L.R. § 3017(c) response states that she is seeking
$1, 000, 000 in monetary damages - a sum well in excess of
$75, 000. (See ECF No. 1, Ex. L ¶ 1.) However,
the Court is not able to ascertain whether there is complete
diversity among the parties on the basis of the materials
presently available to it.
Notice of Removal states that plaintiff Mitchell is a
"citizen of the State of New York residing in New
York" and that defendant Udin is a "citizen of the
State of Connecticut residing in Connecticut" (Notice of
Removal, ECF No. 1 ¶¶ 12, 14), but states that the
Verified Complaint is the source of these allegations. The
Verified Complaint, in turn, sets forth only that Mitchell
and Udin were "resident[s]" of those two states at
the time of the incident at issue and at the time the
Verified Complaint was filed. (Verified Complaint, ECF No. 1,
Ex A ¶¶ 1, 3.) It is well-settled that "a
statement of the parties' residence is
insufficient to establish their citizenship" for
purposes of assessing diversity. Leveraged Leasing Admin.
Corp. v. PacifiCorp Capital, Inc., 87 F.3d 44, 47 (2d
Cir. 1996) (emphasis added); see also Mackason v. Diamond
Fin. LLC, 347 F.Supp.2d 53, 55 (S.D.N.Y. 2004).
Moreover, in a case removed to federal court, diversity of
citizenship must exist both at the time that the
action was commenced in state court and at the time of
removal. See United Food & Commercial Workers Union,
Local 919, AFL-CIO ("United Food & Commercial
Workers Union") v. CenterMark Properties Meriden Square,
Inc., 30 F.3d 298, 301 (2d Cir. 1994). Here, the
Verified Complaint's assertions of the parties'
states of residence is of especially limited value because
defendants have sought removal almost six months after the
Verified Complaint was filed.
respect to the citizenship of defendant City Express
Limousine, LLC, the allegations in the Notice of Removal are
equally problematic. The Verified Complaint alleges
"upon information and belief" that City Express
Limousine, LLC is a "foreign limited liability
corporation, doing business in the State of Connecticut"
(Verified Complaint, ECF No. 1, Ex. A ¶ 2), and the
Notice of Removal clarifies that it is a "Connecticut
corporation with its principal place of business in
Connecticut" (Notice of Removal, ECF No. 1 ¶ 13).
However, the name of this defendant strongly suggests that it
is an "LLC, " which - under Connecticut law - is a
limited liability company, not a corporation.
See Conn. Gen. Stat. § 34-102 (2017) (noting
that the name of each limited liability company
"must contain the words 'Limited Liability
Company' or the abbreviations 'L.L.C or
'LLC'" and should be distinguishable from the
names of any "corporation existing under the laws of
this state"); Austen v. Catterton Partners V,
LP, 729 F.Supp.2d 548, 555-56 & n.3 (D. Conn. 2010)
(criticizing certain courts for "erroneously
referr[ing]" to LLCs as "limited liability
corporations" rather than "limited liability
companies" in the context of a discussion about the
application of Connecticut's long-arm statute);
Buturla v. AWTY Prods., LLC, No. 3-.12-CV-1758, 2012
WL 6649590, at *3 (D. Conn. Dec. 20, 2012) (noting that,
despite a notice of removal's claim that "AWTY
Productions, LLC" is a "corporation, " the use
of "LLC" in its name "indicate[s] that it may
in fact be a 'limited liability company'").
neither the Notice of Removal nor the exhibits appended to it
lists the members of City Express Limousine, LLC or their
states of citizenship, this Court cannot infer that there is
complete diversity of citizenship in this action. See
United Food & Commercial Workers Union, 30 F.3d at
302 ("[W]e are not free to speculate on the citizenship
of each of [a non-incorporated union's] members in the
complete absence of any evidence regarding members'
citizenship."); see also Mackason v. Diamond Fin.
LLC, 347 F.Supp.2d 53, 56 (S.D.N.Y. 2004) (directing
defendants to "identify[ ] each member of the defendant
LLC . .., and setting forth with respect to each such member
facts sufficient to demonstrate citizenship");
Buturla, 2012 WL 6649590, at *4 (same); Linium,
LLC v. Bernhoit, l:17-CV-0200, 2017 WL 2599944, at *3
(N.D.N.Y. June 15, 2017) (same).
Court hereby orders each party to this action to file proof
of their respective citizenships on or before July 21, 2017.
Specifically, plaintiff Nikia Olivia Mitchell and defendant
Jamir Udin must set forth under oath their state(s) of
citizenship both at the commencement of this action in the
Supreme Court of the State of New York, Bronx County, on
January 17, 2017, and at the time of removal to this Court,
on June 14, 2017. Defendant City Express Limousine, LLC, is
directed to declare under oath whether it was in fact a
corporation or a limited liability company on the relevant
dates and, if it is a limited liability company, to declare
the state(s) of citizenship of each of its members. If the
Court determines that ...