MLM Express Courier & Freight Service, LLC v. CreditAntidote, LLC
| MLM Express Courier & Freight Service LLC |
| CreditAntidote LLC |
| 3:2023cv01783 |
| August 10, 2023 |
| US District Court for the Northern District of Texas |
| Ed Kinkeade |
| Contract: Other Contract |
| 28 U.S.C. ยง 1332 Diversity-Breach of Contract |
| None |
Docket Report
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Filing 10
ELECTRONIC ORDER: In an order dated September 12, 2023, the Court warned Plaintiff and its counsel that a show cause order would issue if two previous court orders were not complied with by September 19, 2023. See Doc. Nos. 4 & 8. After that deadline ran, the Court attempted numerous times to reach Plaintiff's counsel by telephone. On September 27, 2023, the Court spoke with counsel for Plaintiff who stated that, no later than Tuesday, October 3, 2023, he would file a notice of dismissal under Rule 41(a) of the Federal Rules of Civil Procedure because Plaintiff wishes to prosecute this lawsuit in California state court. To-date, no such notice has been filed. The Court has extended repeated courtesies to Plaintiff and its counsel in this matter. No further such consideration will be given. On counsel's representation that Plaintiff wishes to dismiss this matter without prejudice, the Court will do so no later than October 9, 2023. However, if Plaintiff has decided to continue prosecuting this case, Plaintiff must notify the Court by 9:00 a.m., October 9, 2023. (Ordered by Judge Ed Kinkeade on 10/5/2023) (chmb)
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Filing 9
ELECTRONIC ORDER: On August 10, 2023, the Court ordered Plaintiff to file the entry of appearance of local counsel by August 30, 2023. See Doc. No. 4. On August 30, 2023, the Court ordered Plaintiff to file its Certificate of Interested Persons which was not filed contemporaneously with its complaint, see L. Civ. R. 3.1, and which must include the citizenship disclosure statement required by newly amended Rule 7.1(a)(2) of the Federal Rules of Civil Procedure. See Doc. No. 8. To-date, Plaintiff has not complied with either order of this Court. Accordingly, Plaintiff shall accomplish (1) the entry of appearance of local counsel and (2) the filing of its Certificate of Interested Persons, both required pursuant to this Court's Local Civil Rules, by September 19, 2023. If Plaintiff fails to comply with this Order, the Court will issue an order requiring Plaintiff's counsel to show cause in writing why they should not be sanctioned for failing to comply with the orders of this Court. (Ordered by Judge Ed Kinkeade on 9/12/2023) (chmb)
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Filing 8
ELECTRONIC ORDER: This Court's Local Civil Rule 3.1 requires the plaintiff to file, contemporaneously with the complaint, a separately signed certificate of interested persons that contains specific information listed in Rule 3.1(c) in addition to the requirements of Rule 7.1 of the Federal Rules of Civil Procedure. Plaintiff has not yet filed its Certificate of Interested Persons/Disclosure Statement. See Fed. R. Civ. P. 7.1; L. Civ. R. 3.1. The Court ORDERS Plaintiff to file its Certificate of Interested Persons/Disclosure Statement by September 6, 2023.Because this case is in federal court on the basis of diversity jurisdiction, each party's certificate of interested persons "must name--and identify the citizenship of--every individual or entity whose citizenship is attributed to that party[.]" Fed. R. Civ. P. 7.1(a)(2) (effective December 1, 2022). As a reminder for both parties, the citizenship of a limited liability company is determined by the citizenship of each of its members, whose name and citizenship must be identified, as well as all sub-members. See Carden v. Arkoma Assocs., 494 U.S. 185, 196 (1990); Settlement Funding, L.L.C. v. Rapid Settlements, Ltd., 851 F.3d 530, 536 (5th Cir. 2017). These parties shall ensure that their respective certificates of interested persons contain this required citizenship disclosure statement in addition to the other information outlined in Rule 7.1 and Local Rule 3.1. (Ordered by Judge Ed Kinkeade on 8/30/2023) (chmb)
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| Filing 7 AMENDED COMPLAINT against CreditAntidote LLC filed by MLM Express Courier & Freight Service LLC. Unless exempted, attorneys who are not admitted to practice in the Northern District of Texas must seek admission promptly. Forms, instructions, and exemption information may be found at www.txnd.uscourts.gov, or by clicking here: # Attorney Information - Bar Membership. If admission requirements are not satisfied within 21 days, the clerk will notify the presiding judge. (Wilson, Robert) |
| Filing 6 AMENDED COMPLAINT MLM Express Courier & Freight Service, LLC against CreditAntidote LLC filed by MLM Express Courier & Freight Service LLC. Unless exempted, attorneys who are not admitted to practice in the Northern District of Texas must seek admission promptly. Forms, instructions, and exemption information may be found at www.txnd.uscourts.gov, or by clicking here: # Attorney Information - Bar Membership. If admission requirements are not satisfied within 21 days, the clerk will notify the presiding judge. (Wilson, Robert) |
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Filing 5
ELECTRONIC ORDER: "Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A federal court has no power to adjudicate claims where subject matter jurisdiction does not exist and, consequently, must dismiss the action. Stockman v. Fed. Election Commn, 138 F.3d 144, 151 (5th Cir. 1998); see also FED. R. CIV. P. 12(h)(3) (court must dismiss action if it determines at any time that subject matter jurisdiction is lacking). The Court has an obligation to examine its subject matter jurisdiction sua sponte at any time. See FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 230-31 (1990); see also Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999) ("[S]ubject-matter delineations must be policed by the courts on their own initiative even at the highest level."). Subject matter jurisdiction may not be waived. See Ruhrgas AG, 526 U.S. at 583.Plaintiff filed this case in federal court on the basis of diversity jurisdiction, 28 U.S.C. 1332(a). Doc. No. 1 at 2. Accordingly, the parties' citizenship must be completely diverse in that one of the plaintiffs cannot share the same state citizenship as one of the defendants. See Corfield v. Dallas Glen Hills LP, 355 F.3d 853, 857 (5th Cir. 2003). "When jurisdiction depends on citizenship, citizenship must be 'distinctly and affirmatively alleged.'" Getty Oil Corp., a Div. of Texaco v. Ins. Co. of N. Am., 841 F.2d 1254, 1259 (5th Cir. 1988). "An allegation of residency... does not satisfy the requirement of an allegation of citizenship." Neely v. Bankers Tr. Co. of Tex., 757 F.2d 621, 634 n.18 (5th Cir. 1985); see also Preston v. Tenet Healthsystem Meml Med. Ctr., Inc., 485 F.3d 793, 79798 (5th Cir. 2007). "[C]itizenship and residence, as often declared by this court, are not synonymous terms." Robertson v. Cease, 97 U.S. 646, 648 (1878). "In determining diversity jurisdiction, the state where someone establishes his domicile serves a dual function as his state of citizenship." Preston, 485 F.3d at 798. "Domicile requires the demonstration of two factors: residence and the intention to remain." Id. at 799; see Texas v. Florida, 306 U.S. 398, 424 (1939) (citizenship requires not only "[r]esidence in fact" but also "the purpose to make the place of residence one's home.").In its attempt to plead the parties' citizenship, Plaintiff identified its own member as well as Defendant CreditAntidote, LLC's member. See Carden v. Arkoma Assocs., 494 U.S. 185, 196 (1990) (diversity jurisdiction is determined by citizenship of "'all the members'" of the unincorporated entity or association); Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1079-80 (5th Cir. 2008). However, Plaintiff indicates the state of residence for these members, respectively, as well as that each is a "United States citizen". Doc. No. 1 at 2. For diversity purposes, the state of a party's residence is insufficient. Under these facts, the Court must know the state, not the country, of each party's citizenship, not residence. 1332(a)(1). Further, it is not clear to the Court whether Defendant's member is the only member known to Plaintiff as a result of its best efforts prior to filing suit, or whether further effort may reveal other members. For these reasons, these allegations are insufficient for diversity purposes. Getty Oil, 841 F.2d at 1259 ("When jurisdiction depends on citizenship, citizenship must be 'distinctly and affirmatively alleged.'").At this time, the Court cannot determine that diversity jurisdiction exists. The party seeking the federal forum bears the burden of establishing subject matter jurisdiction. See St. Paul Reinsurance Co. v. Greenburg, 134 F.3d 1250, 1253 (5th Cir. 1998). By August 24, 2023, Plaintiff may amend its complaint to properly allege the parties' citizenship, including a clearer statement regarding Plaintiff's knowledge of Defendant's member(s). If Plaintiff fails to do so, the Court will dismiss this case without prejudice without further notice. See FED. R. CIV. P. 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action."); Stafford, 945 F.2d at 805 ("Failure adequately to allege the basis for diversity jurisdiction mandates dismissal."). If Plaintiff chooses to amend, the Court recommends Plaintiff review the pleading for typographical errors as the current complaint is fraught with them, beginning with the header "Plaintiffs' Third Amended Complaint". The Court also notes that the exhibits referenced in the complaint are not properly marked, thus the Court cannot determine where one ends and the next begins or if all the exhibts are even attached. (Ordered by Judge Ed Kinkeade on 8/10/2023) (chmb)
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Filing 4
ELECTRONIC ORDER: Local Civil Rule 83.10(a) requires the appearance of local counsel where the attorney of record for a party does not reside or maintain their principal office in this district. Plaintiff's counsel's office is located in Plano, Texas, which is in Collin County, and Collin County is located in the Eastern District of Texas, not the Northern District. 28 U.S.C. 124(c)(3). By August 31, 2023, Plaintiff shall file the entry of appearance of local counsel satisfying the requirements of Local Civil Rule 83.10(a). (Ordered by Judge Ed Kinkeade on 8/10/2023) (chmb)
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| Filing 3 Summons Issued as to CreditAntidote LLC. (agc) |
| Filing 2 New Case Notes: A filing fee has been paid. Pursuant to Misc. Order 6, Plaintiff is provided the Notice of Right to Consent to Proceed Before A U.S. Magistrate Judge (Judge Horan). Clerk to provide copy to plaintiff if not received electronically. (agc) |
| Filing 1 COMPLAINT against All Defendants filed by MLM Express Courier & Freight Service, LLC. (Filing fee $402; Receipt number ATXNDC-13947161) Clerk to issue summons(es). In each Notice of Electronic Filing, the judge assignment is indicated, and a link to the # Judges Copy Requirements and # Judge Specific Requirements is provided. The court reminds the filer that any required copy of this and future documents must be delivered to the judge, in the manner prescribed, within three business days of filing. Unless exempted, attorneys who are not admitted to practice in the Northern District of Texas must seek admission promptly. Forms, instructions, and exemption information may be found at www.txnd.uscourts.gov, or by clicking here: # Attorney Information - Bar Membership. If admission requirements are not satisfied within 21 days, the clerk will notify the presiding judge. (Wilson, Robert) |
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| Plaintiff: MLM Express Courier & Freight Service LLC | |
| Represented By: | Robert D Wilson |
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| Defendant: CreditAntidote LLC | |
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