United States District Court, W.D. Missouri, Western Division
FERNANDO J. GAITAN, JR. United States District Judge.
pending before the Court is defendants' Farmers of North
America, Inc. (“FNA”) and James Mann's
(“Mann”), Motion to Dismiss for Lack of Subject
Matter jurisdiction (Doc. No. 33). Also before the court is
plaintiff's motion to file a surreply in opposition to
defendants' motion to dismiss (Doc. No. 39). As an
initial matter, the Court finds a surreply to be unnecessary
and DENIES plaintiff's motion for leave to file same
(Doc. No. 39).
February 1, 2016, plaintiff filed the present suit in the
United States District Court for the Western District of
Missouri. After some time, on July 27, 2016 Plaintiff
executed service in accordance with The Hague Service
Convention upon Defendant FNA in Saskatoon, Saskatchewan. The
defendant FNA is the spinoff of a Canadian company by the
similar name, Farmers of North America, hereinafter
“FNA Canada”; the like businesses' plan is to
provide a subscription-based membership organization,
“like a COSTCO or SAM'S CLUB, that used a
membership structure to enhance buying power and pricing of
commonly used and desired farming products and needs.”
(Doc. No. 25 at 4). The plaintiff alleges in his First
Amended Complaint (“FAC”) (Doc. No. 25), that
defendants FNA and Mann, the CEO of FNA, (1) breached the
employment contract; (2) made fraudulent misrepresentations
in the employment negotiations; and (3) intentionally
interfered with the rights of the plaintiff.
claims in the FAC this Court has diversity jurisdiction over
this case, as plaintiff is a Missouri citizen, and FNA is
incorporated in Delaware. Defendants subsequently filed their
motion to dismiss for lack of subject matter jurisdiction
(Doc. No. 33), which also argues that in the event the court
finds subject matter jurisdiction exists, the court should
compel the parties to arbitrate as per the employment
agreement between the parties. Defendant also seeks the
dismissal of Count III - intentional interference - as a
matter of law.
to dismiss for lack of subject matter jurisdiction are
governed by Rule 12(b)(1). Additionally, 28 U.S.C. §
1332(a)(1) states that the district courts shall have
original jurisdiction in civil actions between citizens of
different States when the amount in controversy exceeds $75,
000. “Complete diversity of citizenship exists where no
defendant holds citizenship in the same state where any
plaintiff holds citizenship.” One Point Solutions,
LLC v. Borchert, 486 F.3d 342, 436 (8th Cir.
2007)(citing Owen Equip. & Erection Co. v.
Kroger, 437 U.S. 365, 373, 98 S.Ct. 2396 (1978)).
plaintiff shall have the “burden to establish the
factual bases for the subject matter jurisdiction plaintiff
invokes.” Wilkerson v. Mo. Dep't of Mental
Health, 279 F.Supp.2d 1079, 1080 (E.D. Mo. 2003) (citing
Osborn v. United States, 918 F.2d 724, 730 (8th Cir.
1990). Corporations have dual citizenship for diversity
purposes, both the state of its incorporation and the
location of its “principal place of business.” 28
U.S.C. § 1332(c)(1). In Hertz Corp. v. Friend,
130 S.Ct. 1181 (2010), the Supreme Court adopted the
“nerve center” test to clarify the principal
place of business, that is “where a corporation's
officers direct, control and coordinate the corporation's
activities.” Hertz, 130 S.Ct. at 1192.
also well established that “[w]here there is no change
of party, a jurisdiction depending on the condition of the
party is governed by that condition, as it was at the
commencement of the suit.” Connoly v. Taylor,
27 U.S. 556, 565 (1829); see also Grupo Dataflux v. Atlas
Global Group, L.P., 541 U.S. 567, 571 (2004);
Centrue Bank v. Golf Disc. of St. Louis, Inc., No.
4:10CV16 TIA, 2010 WL 4178942, at *2 n.1 (E.D.Mo. 2010)
(“For purposes of diversity jurisdiction, the Court
analyzes citizenship as of the date that the Complaint was
filed.” (Internal citations omitted)).
their motions, the parties dispute the location of FNA's
nerve center. “In a facial challenge to jurisdiction,
all of the factual allegations concerning jurisdiction are
presumed to be true and the motion is successful if the
plaintiff fails to allege an element necessary for subject
matter jurisdiction.” Titus v. Sullivan, 4
F.3d 590, 593 (8th Cir. 1993). Here, defendants challenge
that FNA's principal place of business, although being
incorporated in Delaware, is located in the same state as the
plaintiff's citizenship, in Missouri. To advance their
theory, defendants allege that plaintiff Webb, the former COO
of FNA, used his home address as FNA's ‘principal
place of business' when registering to do business in
Missouri (Doc. No. 33-1, at 3). Defendants argue that
plaintiff ran the company from Missouri, exemplified by
plaintiff's registering of a post office box, writing the
initial marketing and business plans and performing the
initial hiring decisions, all from Missouri (Doc No. 36, at
3-4, citing Aff. of James Webb (Doc. No. 35-1)).
response, the plaintiff argues that FNA, much like its
spinoff-model FNA Canada, is controlled by citizens of
Canada, in Canada. “It was there that life was given to
any idea or project, approval was given to any action, but
most important, funding was provided ...