United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
C. HAMILTON UNITED STATES DISTRICT JUDGE.
the Court is the Motion for Remand and Fees filed by
Plaintiff Geek Essentials, LLC. (ECF 7). The matter is fully
briefed and ready for disposition.
November 10, 2017, Plaintiff filed a cause of action against
Defendants Sherman Carter PTY LTD, Digital Tree House PTY
LTD, Gary Tramer, and Michael Jankie, a/k/a Allan Jankie, in
the Circuit Court of the City of St. Louis, Missouri. (ECF
1.1). Plaintiff sought to recover damages and other relief
for alleged fraudulent statements and omissions made in
connection with the sale of a business. As relevant to the
pending Motion for Remand and Fees, Plaintiff's Complaint
alleges that Plaintiff is a “limited liability company
incorporated in Missouri with its principal place of business
in Missouri, and with members domiciled in Delaware,
Missouri, and Canada.” (ECF 1.1, ¶ 2). The
Complaint further alleges that Defendant Sherman Carter PTY
LTD is a private Australian Company, located in Victoria
Australia; that Defendant Digital Tree House PTY LTD is a
private Australian Company, located in Victoria, Australia,
and “is believed to be the parent company of Sherman
Carter”; that Defendant Gary Tramer is a citizen of
Australia; and that Defendant Michael Jankie, a/k/a Allan
Jankie, is a citizen of Australia. (ECF 1.1, ¶¶
December 8, 2017, Defendants removed this matter to the
United States District Court for the Eastern District of
Missouri on the basis of the Court's diversity
jurisdiction pursuant to 28 U.S.C. § 1332(a). (ECF 1).
Specifically, Defendants state, in the Notice of Removal that
the amount in controversy exceeds $75, 000; that each
Defendant is a citizen of Australia; that Plaintiff is a
limited liability company formed under the laws of Missouri
and with its principal place of business within Missouri; and
that, therefore, this civil action is between citizens of a
State and citizens or subjects of a foreign state, as
required for this Court's original jurisdiction pursuant
to 28 U.S.C. § 1332(a). (ECF 1, ¶¶ 5-8).
January 2, 2018, pursuant to Local Rule 3-2.09, Plaintiff
filed a Disclosure of Organizational Interests Certificate
reflecting that it is a limited liability company and stating
that, as such, its member NeedWant, Inc., is incorporated
under Delaware law and is a citizen of Delaware and Missouri,
and its member Tiny Capital Ltd., is incorporated under
British Columbia law as a Canadian Controlled Private
Corporation and a citizen of Canada. (ECF 6 at 1-2).
January 10, 2018, Plaintiff filed the Motion under
consideration in which it asserts that, because Plaintiff is
a domestic and foreign citizen and Defendants are foreign
citizens, the complete diversity required for federal
jurisdiction pursuant to 28 U.S.C. § 1332(a) does not
exist; Plaintiff's foreign citizenship destroys
diversity. (ECF 7, ¶¶ 5-6). Plaintiff further asks
the Court to award it costs, expenses, and attorneys'
fees because “Defendants lacked an objectively
reasonable basis for removal.” (ECF (ECF 7, ¶ 8)
(citing 28 U.S.C. § 1447(c) (“An order
remanding the case may require payment of just costs and any
actual expenses, including attorney fees, incurred as a
result of the removal.”).
FRAMEWORK and DISCUSSION
party seeking the federal forum has the burden of pleading
diversity of citizenship of the parties, Walker v.
Norwest Corp., 108 F.3d 158, 161 (8th Cir.
1997), and the burden of establishing diversity jurisdiction
by a preponderance of the evidence, Sheehan v.
Gustafson, 967 F.2d 1214, 1215 (8th Cir.
1992). “[A]ll doubts about federal jurisdiction [are
resolved] in favor of remand.” Transit Cas. Co v.
Certain Underwriters at Llyod's of London, 119 F.3d
619, 625 (8th Cir. 1997).
district courts have original jurisdiction of all civil
actions when the matter in controversy. is between citizens
of a State and citizens or subjects of a foreign state. 28
U.S.C. § 1332(a)(2). Where there are plural plaintiffs
and/or plural defendants, a federal court does not have
diversity jurisdiction unless there is diversity between all
plaintiffs and all defendants. Iowa Pub. Serv. Co. v.
Med. Bow Coal, Co., 556 F.2d 400, 403-404
(8th Cir. 1977). “[T]here is no explicit
grant of jurisdiction in a case where one side consists of
only citizens of a foreign state and the other side consists
of both citizens of a [S]tate and of a foreign state.”
Wu v. Ryder Truck Rental, Inc., 561 F.Supp.2d 1061,
1062 (E.D. Mo. 2008) (citing, e.g., Lee v. ANC Car Rental
Corp., 220 Fed.Appx. 493 (9th Cir. 2007)
(diversity lacking where Korean plaintiffs sued defendants
who were citizens of Korea, Florida, Delaware and Michigan);
U.S. Motors v. General Motors Europe, 519 F.Supp.2d
671 (E.D. Mich. 2007) (finding no diversity jurisdiction
where plaintiffs were citizens of Florida, Iowa, Michigan,
the Czech Republic, Slovakia and the Netherlands and
defendant was a citizen of Switzerland).
purposes of determining diversity, “the citizenship of
a limited partnership is the citizenship of each of its
partners, both general and limited.” Affordable
Communities of Missouri v. EF & A Capital Corp.,
2008 WL 4966731, at *1 (E.D. Mo. Nov. 19, 2008) (citing
Carden v. Arkoma Assocs., 494 U.S. 185, 195-96 (1990);
Buckley v. Control Data Corp., 923 F.2d 96, 97 (8th
Cir. 1991)). For a limited liability company, the Court must
examine the citizenship of each of its members for purposes
of determining whether federal diversity jurisdiction exists.
GMAC Commercial Credit LLC v. Dillard Dep't Stores,
Inc., 357 F.3d 827, 829 (8th Cir. 2004). In the case of
a removed action, diversity must exist both when the state
petition is filed and when the petition for removal is filed.
Ryan v. Schneider Nat'l Carriers, Inc., 263 F.3d
816, 819 (8th Cir. 2001) (citing 28 U.S.C. § 1447(e)).
Notice of Removal confirms the allegation of Plaintiff's
Complaint that Defendants are all foreign citizens. While the
Complaint is arguably not definitive regarding
Plaintiff's citizenship, Plaintiff's Disclosure of
Organizational Interests Certificate clearly articulates that
Plaintiff is an LLC and that its first member, NeedWant, is a
citizen of Delaware and Missouri and that Plaintiff's
second member, Tiny Capital, is a citizen of Canada. As a
limited liability company, Plaintiff's citizenship is
determined by that of both of its members, NeedWant and Tiny
Capital. See Affordable Communities of Missouri,
2008 WL 4966731, at *1. Thus, Plaintiff is both a citizen of
a State and of a foreign state. Because Plaintiff is both a
citizen of a State and of a foreign state and Defendants are
all citizens of a foreign state, the Court finds that the
complete diversity required for federal jurisdiction does not
exist. See Iowa Pub. Serv., 556 F.2d at 403-404;
Wu, 561 F.Supp.2d at 1062. As such, the Court
further finds that this Court does not have federal
jurisdiction pursuant to 28 U.S.C. § 1332(a), and that
this matter should be remanded to State court.
extent Plaintiff asks that the Court award costs, expenses,
and attorney's fees, the Court finds that Defendants had
an objectively reasonable basis for removal and that,
therefore, the unusual circumstances which are a prerequisite
for the awarding of fees and costs incurred in a remanded
case are not present. See Martin v. Franklin Capital
Corp.,546 U.S. 132, 141 (2005) (“Absent unusual
circumstances, courts may award attorney's fees under
§ 1447(c) only where the removing party lacked an
objectively reasonable basis for seeking removal. Conversely,
when an objectively reasonable ...