United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
STEPHAN M. VIDMAR, UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court sua sponte, following its review
of the Amended Complaint and Jury Demand [Doc. 4], filed by
Plaintiff on January 8, 2019. The Court has a duty to
determine whether subject matter jurisdiction exists sua
sponte. See Tuck v. United Servs. Auto. Ass'n,
859 F.2d 842, 844 (10th Cir. 1988). The Court, having
considered the Amended Complaint, the applicable law, and
being otherwise fully advised in the premises, concludes that
the Amended Complaint fails to allege the necessary facts of
citizenship to sustain diversity jurisdiction. In particular,
Plaintiff has failed to adequately allege the citizenship of
Defendant's general partner. See [Doc. 4] at 2.
The general partner is Whitney, LLC. See Id.
Plaintiff must adequately allege the citizenship of each and
every member of Whitney, LLC. To that end, the Court will
order Plaintiff to file a second amended complaint no later
than February 5, 2019, if the necessary jurisdictional
allegations can be made in compliance with the dictates of
Rule 11 of the Federal Rules of Civil Procedure.
December 18, 2018, Plaintiff filed its Complaint, asserting
diversity of citizenship and an amount in controversy
exceeding $75, 000. [Doc. 1] at 2. In support of its claim of
diversity of citizenship, Plaintiff reported that it was a
citizen of Iowa because it was incorporated in Iowa and
maintained its principal place of business in West Des
Moines, Iowa. Id. at 1. Plaintiff further asserted
that at all relevant times, Defendant was “a New Mexico
limited partnership with its principal place of business at
5042 Whitney Lane, Roswell, New Mexico.” Id.
However, Plaintiff made no allegation about the citizenship
of the partners of Defendant Whitney Farms, LP. See
the Court ordered Plaintiff to amend its complaint to
adequately allege the citizenship of each and every partner
of Defendant Whitney Farms, LP. [Doc. 3]. Plaintiff timely
amended its complaint, but its allegations still fall short.
Amended Complaint, Plaintiff alleges that the limited
partners of Defendant Whitney Farms are Doug Whitney and
Theresa Kay Whitney and both are citizens of New Mexico.
Id. at 2. Plaintiff also alleges that the general
partner of Defendant Whitney Farms is Whitney, LLC. Plaintiff
alleges that Whitney, LLC, “is a New Mexico limited
liability company with its principal place of business at
5042 Whitney Lane, Roswell, New Mexico.” Id.
Plaintiff makes no allegation about the citizenship of the
members of Whitney, LLC. See id.
plaintiff is required to assert the basis of subject matter
jurisdiction in its complaint. Fed.R.Civ.P. 8. Additionally,
the district court must be satisfied that, indeed, it has
subject matter jurisdiction. State Farm Mut. Auto. Ins.
Co. v. Narvaez, 149 F.3d 1269, 1270-71 (10th Cir. 1998).
Subject matter jurisdiction cannot be waived and thus may be
raised by the parties or sua sponte at any time.
Louisville & Nashville R.R. Co. v. Mottley, 211
U.S. 149, 152 (1908).
courts have original jurisdiction of all civil actions where
the amount in controversy exceeds the sum or value of $75,
000, exclusive of interest and costs, and is between citizens
of different States. 28 U.S.C. § 1332(a) (2018).
Determining the citizenship of a partnership, limited
partnership, or limited liability company is different from
determining the citizenship of a corporation under §
1332. A corporation is deemed to be a citizen of
the States in which it is incorporated and in which
it maintains its principal place of business. § 1332(c).
Partnerships, limited partnerships, and limited
liability companies, however, are citizens of each and every
State in which any partner or member is a citizen.
Carden v. Arkoma Assocs., 494 U.S. 185, 195-96
(1990) (the citizenship of business entities is determined by
the citizenship of its members); Penteco Corp. Ltd.
P'ship-1985A v. Union Gas Sys., Inc., 929 F.2d 1519,
1522- 23 (10th Cir. 1991) (remanding for district court to
determine the citizenship of all of the members of the
plaintiff limited partnership); Siloam Springs Hotel, LLC
v. Century Sur. Co., 781 F.3d 1233, 1234 (10th Cir.
2015) (remanding to district court to determine the
citizenship of all the members of the plaintiff limited
the facts set forth in the Complaint do not sufficiently
establish the citizenship of Defendant Whitney Farms, LP.
Although Plaintiff adequately alleges the citizenship of the
limited partners, it fails to adequately allege the
citizenship of the general partner, which is an LLC. The
citizenship of an LLC is determined by the citizenship of
each and every one of its members. Plaintiff may amend its
Complaint to properly allege the citizenship of Defendant
Whitney Farms, LP, by adequately alleging the citizenship of
each and every member of its general partner, Whitney, LLC.
IS THEREFORE ORDERED, ADJUDGED, AND DECREED that
Plaintiff must file a second amended complaint to properly
allege diversity of citizenship, if such allegations can be
made in compliance with the dictates of Rule 11 of the
Federal Rules of Civil Procedure, no later than
February 5, 2019.
IS FURTHER ORDERED that if such an amended complaint
is not filed by February 5, 2019, the Court
may dismiss this action without prejudice.