United States District Court, D. New Mexico
ORDER TO SHOW CAUSE AND ORDER SETTING TELEPHONIC
STEPHAN M. VIDMAR UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court sua sponte, following its review
of the Second Amended Complaint and Jury Demand [Doc. 7],
filed by Plaintiff on February 5, 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). Having
considered the Second Amended Complaint, the applicable law,
and being otherwise fully advised in the premises, the Court
concludes that the Second Amended Complaint fails to allege
the necessary facts of citizenship to sustain diversity
jurisdiction. In particular, Plaintiff fails to adequately
allege the citizenship of Defendant's general partner,
Whitney, LLC. See [Doc. 7] at 2. Plaintiff must
appear telephonically on March 19, 2019, at 3:30
p.m. to show cause why this action should not be
dismissed without prejudice for lack of jurisdiction. Counsel
must call the Court's AT&T Conference Line,
(888) 363-4734 (access code: 4382538), to
connect to the proceedings.
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 fell short.
Amended Complaint, Plaintiff alleged 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 alleged that the general
partner of Defendant Whitney Farms is Whitney, LLC. Plaintiff
alleged 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 made no allegation about the citizenship of the
members of Whitney, LLC. See id.
the Court ordered Plaintiff to amend its complaint again to
adequately allege the citizenship of each and every member of
Whitney, LLC. [Doc. 5]. Plaintiff timely filed its Second
Amended Complaint, but its allegations are still inadequate.
See [Doc. 7] at 2.
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).
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) (stating 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 Second Amended 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
4. The General Partner of Defendant Whitney Farms is Whitney,
LLC. Whitney, LLC is a New Mexico limited liability company
with its principal place of business at 5042 Whitney Lane,
Roswell, New Mexico. According to Whitney, LLC s Certificate
of Organization, the manager of Whitney, LLC is Doug Whitney,
a citizen of New Mexico residing at 5042 Whitney Lane,
Roswell, New Mexico. In September 2004, Doug Whitney,
Whitney, Inc., and Whitney, LLC for itself and as General
Partner of Whitney Farms, Ltd., filed ...