United States District Court, E.D. New York
MEMORANDUM AND ORDER
R. Hurley United States District Judge
a New York Limited Liability Company with a single member who
is a citizen and resident of New York, commenced this action
on January 11, 2018 asserting claims for breach of an
Aircraft Purchase Agreement (the “Agreement”) and
alleging that this Court has jurisdiction pursuant to 28
U.S.C. § 1332 because the parties are diverse in
citizenship and the amount in controversy exceeds $75, 000.
(Complaint. ¶ 2.) Named as Defendant in the original
complaint was Halley Equipment Leasing, LLC, “a limited
liability company organized and existing under the laws of
the State of Texas, with its principal place of business
located at 1250 W. Southlake Blvd., Southlake, TX
76092.” (Id. ¶ 5.) In the original
Complaint, Plaintiff failed to allege the citizenship and
residency of Defendant's members.
accordance with its obligation to ensure that subject matter
jurisdiction exists, on January 17, 2018, this Court ordered
Plaintiff to show cause in writing why the action should not
be dismissed for lack of subject matter jurisdiction. On
February 6, 2018, Plaintiff filed an amended Complaint, which
again failed to address the citizenship and residency of
February 7, 2018, Plaintiff responded to the Court's
order to show cause by letter, which alleges simply that
“subject matter jurisdiction exists in this case as
Sienna Ventures, LLC  is a New York Limited Liability
Company and its sole member is a citizen and resident of New
York, and Halley Equipment Leasing, LLC  is a Texas Limited
Liability Company.” (Response to Order to Show Cause
[DE 9] at 1.) Plaintiff makes no other allegations concerning
the residency or citizenship of Defendant's members.
Thus, as explained below, the case is dismissed for lack of
subject matter jurisdiction.
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).
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 Fed.App'x 482, 483 (2d Cir. June 12,
2012). “For purposes of diversity jurisdiction, [an
individual's] citizenship depends on his domicile.”
Linardos v. Fortuna, 157 F.3d 945, 948 (2d Cir.
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 Fed.App'x 38 (2d Cir. 2010).
The Amended Complaint
viewed against the foregoing principles, diversity
jurisdiction has not been properly pled in this case as the
citizenship of the limited liability companies is deficient.
Plaintiff has had three proverbial “bites at the
apple” to properly allege subject matter jurisdiction;
in the Complaint, the Amended Complaint, and the Response to
the Order to Show Cause. Plaintiff has failed to do so on all
occasions. Notably, Plaintiff does not even acknowledge this
fatal shortcoming in its Response to the Order to Show Cause.
that the Court specifically ordered Plaintiff to show cause
why the case should not be dismissed for lack of subject
matter jurisdiction and Plaintiff still failed to do so, the
Court dismisses ...