Canning v. SEK Holdings, LLC et al
| James Canning |
| Z-Surance, Todd Bigelow, SEK Holdings, LLC, Joshua Sawicki, Marc Zetoff and Sawicki Agency |
| 3:2019cv01497 |
| September 24, 2019 |
| US District Court for the District of Connecticut |
| Michael P Shea |
| Contract: Other |
| 28 U.S.C. ยง 1332 |
| Plaintiff |
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Filing 11
ORDER. The #10 Amended Complaint still does not state an adequate basis for the Court's subject matter jurisdiction. The Amended Complaint purports to establish jurisdiction on the basis of diversity of citizenship, but diversity jurisdiction requires complete diversity. The Amended Complaint alleges that Mr. Canning is a citizen of Connecticut. This means that, to establish complete jurisdiction, every single defendant must be a citizen of a state other than Connecticut. At present, Defendants Todd Bigelow and Marc Zetoff are alleged to be citizens of Connecticut. Further, the Amended Complaint states that Mr. Bigelow may be an owner of SEK Holding, LLC. Because an LLC assumes the citizenship of each of its members, this would mean SEK Holding, LLC is also a citizen of Connecticut, in addition to Florida. Again, in order for this Court to have jurisdiction based on diversity of citizenship, given that Mr. Canning is a citizen of Connecticut, every single defendant must be a citizen of a state other than Connecticut. Furthermore, the citizenship of the organizational defendants is inadequately pled. Specifically, the Amended Complaint does not adequately plead the citizenship of SEK Holdings, LLC and Z-Surance, which the Amended Complaint alleges are both LLCs. An LLC assumes the citizenship of each of its members. Thus, to adequately plead the citizenship of an LLC, a complaint must list each member of the LLC and each member's citizenship. The citizenship of Sawicki Agency is also inadequately plead. The organizational form of Sawicki Agency is not alleged in the Complaint. The organizational form of Sawicki Agency must be alleged in the Complaint, because the requirements for pleading citizenship vary depending on the organizational form. The Court refers counsel to its 7 order for further explanation of the relevant law and citations to relevant case law. Within 14 days, the Plaintiff is directed to file an amended complaint that adequately states the basis for the Court's subject matter jurisdiction. If the Plaintiff fails to do so, this case will be dismissed. Signed by Judge Michael P. Shea on 10/29/2019. (Karpman, Michael)
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| Filing 10 AMENDED COMPLAINT against All Defendants, filed by James Canning.(Sodipo, John) |
| Filing 9 First MOTION for Order to Show Cause by James Canning. (Sodipo, John) |
| Filing 8 First MOTION to Amend/Correct by James Canning.Responses due by 11/4/2019 (Sodipo, John) |
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Filing 7
ORDER. The #1 complaint does not state an adequate basis for the Court's subject matter jurisdiction. "If subject matter jurisdiction is lacking and no party has called the matter to the court's attention, the court has the duty to dismiss the action sua sponte." Durant, Nichols, Houston, Hodgson & Cortese-Costa P.C. v. Dupont, 565 F.3d 56, 62 (2d Cir. 2009). Canning assert that the Court has jurisdiction over this case under 28 U.S.C. 1332 because "this is a civil action between citizens of Connecticut, and Florida, and the amount in controversy exceeds $75,000, exclusive of interests and costs." (ECF No. #1 at 2.) As an initial matter, the Court notes that the diversity statute generally requires complete diversity of citizenship. That is, "diversity jurisdiction does not exist unless each defendant is a citizen of a different State from each plaintiff." Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978). Thus, if Canning is a citizen of Connecticut, the complaint must allege that each of the defendants is a citizen of another state.Here, the #1 complaint does not adequately allege the citizenship of most of the parties. For individual parties, a complaint must allege either citizenship or domicile (from which the Court can infer citizenship). Alleging only residence is insufficient. See Leveraged Leasing Admin. Corp. v. PacifiCorp Capital, Inc., 87 F.3d 44, 46 (2d Cir. 1996) ("Because the complaint alleges only the residence, and not the citizenship, of some of the plaintiffs, we cannot determine whether diversity jurisdiction exists."); see also John Birch Soc. v. National Broadcasting Co., 377 F.2d 194, 199 (2d Cir. 1967) ("[I]t has long been held that a statement of residence, unlike domicile, tells the court only where the parties are living and not of which state they are citizens."). For limited liability companies, citizenship is determined by the citizenship of its members. See Handelsman v. Bedford Vill. Assocs. Ltd. P'ship, 213 F.3d 48, 51-52 (2d Cir. 2000) ("[F]or purposes of diversity jurisdiction, a limited liability company has the citizenship of its members.") (internal citation omitted). The complaint must thus allege the identity and citizenship of each member. Neither the place of organization nor the principal place of business determine an LLC's citizenship for the purposes of diversity jurisdiction. For corporate parties, citizenship is determined by "the state in which it is incorporated and the state of its principal place of business." Bayerische Landesbank, New York Branch v. Aladdin Capital Management LLC, 692 F.3d 42, 48 (2d Cir. 2012). Both of these must be alleged in order to establish a corporation's citizenship.Because the #1 complaint fails to state an adequate basis for the Court's jurisdiction, the Plaintiff is ordered to show cause within 14 days why his complaint should not be dismissed for lack of subject matter jurisdiction. Signed by Judge Michael P. Shea on 9/30/2019. (Karpman, Michael)
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| Filing 6 ELECTRONIC SUMMONS ISSUED in accordance with Fed. R. Civ. P. 4 and LR 4 as to *Todd Bigelow, SEK Holdings, LLC, Joshua Sawicki, Sawicki Agency, Z-Surance, Marc Zetoff* with answer to complaint due within *21* days. Attorney *John A. Sodipo* *Jacobs & Sodipo, LLC* *120 Oxford Street* *Hartford, CT 06105*. (Peterson, M) |
| Filing 5 NOTICE TO COUNSEL/SELF-REPRESENTED PARTIES : Counsel or self-represented parties initiating or removing this action are responsible for serving all parties with attached documents and copies of #3 Electronic Filing Order, #4 Protective Order, #1 Complaint, filed by James Canning, #2 Order on Pretrial Deadlines Signed by Clerk on 09/26/2019. (Peterson, M) |
| Request for Clerk to issue summons as to All Defendants. (Sodipo, John) |
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Filing 4
STANDING PROTECTIVE ORDER Signed by Judge Michael P. Shea on 09/24/2019. (Peterson, M)
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Filing 3
ELECTRONIC FILING ORDER FOR COUNSEL - PLEASE ENSURE COMPLIANCE WITH COURTESY COPY REQUIREMENTS IN THIS ORDER Signed by Judge Michael P. Shea on 09/24/2019. (Peterson, M)
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Filing 2
Order on Pretrial Deadlines: Amended Pleadings due by 11/23/2019. Discovery due by 3/25/2020. Dispositive Motions due by 4/29/2020. Signed by Clerk on 09/24/2019. (Peterson, M)
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| Filing 1 COMPLAINT against All Defendants ( Filing fee $400 receipt number ACTDC-5453573.), filed by James Canning. (Attachments: #1 Civil Cover Sheet, #2 Exhibit, #3 Exhibit, #4 Exhibit, #5 Exhibit, #6 Exhibit)(Sodipo, John) Modified text on 9/24/2019 (Anastasio, F.). |
| Judge Michael P. Shea added. (Nuzzi, Tiffany) |
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