Alliant Tax Credit Fund XVI, LTD. v. Thomasville Community Housing, LLC

713 F. App'x 821
CourtCourt of Appeals for the Eleventh Circuit
DecidedOctober 12, 2017
Docket16-17027 Non-Argument Calendar
StatusUnpublished
Cited by9 cases

This text of 713 F. App'x 821 (Alliant Tax Credit Fund XVI, LTD. v. Thomasville Community Housing, LLC) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alliant Tax Credit Fund XVI, LTD. v. Thomasville Community Housing, LLC, 713 F. App'x 821 (11th Cir. 2017).

Opinion

PER CURIAM:

Affiant Tax Credit Fund XI, Ltd. (“Affi-ant XI Ltd.”), Affiant Tax Credit XI, LLC (“Affiant XI LLC”), Affiant Tax Credit Fund XVI, Ltd. (“Affiant XVI Ltd.”), and Affiant Tax Credit XVI, LLC (“Affiant XVI LLC”) (collectively, “Affiant plaintiffs”) appeal the dismissal of their breach-of-contract action for lack of subject matter jurisdiction. The Affiant plaintiffs argue that the district court had jurisdiction based on diversity under 28 U.S.C. § 1332. After thorough review, we affirm the district court.

The relevant procedural history is this. In 2011, the Affiant plaintiffs sued Thom-asville Community Housing, LLC (“Thomasville”) and Muscogee Community Housing, LLC (“Muscogee”) for breach of contract. The complaint invoked the district court’s diversity-based subject matter jurisdiction. It alleged that Affiant XI Ltd. and Affiant XVI Ltd. were both Florida limited partnerships whose partners were citizens of states other than Georgia, and Affiant XI LLC and Affiant XVI LLC were both Florida limited liability companies whose members were citizens of Florida. It also alleged that Thomasville and Muscogee were both Georgia limited liability companies whose members were citizens of Georgia. The parties ultimately consented to adjudication by a magistrate judge, who conducted a bench trial and entered judgment in favor of the Affiant plaintiffs in 2014.

On appeal from the judgment, we issued a jurisdictional question, asking whether the pleadings sufficiently alleged the citizenship of any of the parties so as to establish the district court’s subject matter jurisdiction in the first instance. The Affi-ant plaintiffs submitted, and formally moved to supplement the record with the sworn affidavit of Melvin Gevisser, the chief financial officer of Affiant Company, LLC, a different Affiant entity not named in this action. Gevisser said that the affidavit was based on his “personal knowledge and review of the books and records of The Affiant Company, LLC and related entities, which were prepared by persons with knowledge at or near the relevant time and were made and kept as part of a regularly conducted business activity.” He then explained the composition of the Affi-ant plaintiffs. The Affiant plaintiffs relied on record evidence to demonstrate the citizenship of the defendants. The defendants responded that they did not have information regarding the Affiant plaintiffs’ citi-zenships and did not address their own citizenships. We then issued a supplemental jurisdictional question, explaining that neither side’s response adequately addressed the citizenships of Thomasville or Muscogee.

After both sides responded to the supplemental jurisdictional question, we issued a limited remand for the district court to determine whether diversity-based subject matter jurisdiction existed. Specifically, we instructed the district court to “make specific finding[s] as to each of the parties’ citizenships, including the identity and citizenship, at every level, of the members of each of the four LLC parties ... and every partner in the two partnership parties.... ”

A magistrate judge then directed the parties to file statements as to their citi-zenships at the time the complaint was filed, and the parties provided a joint statement of citizenship supported by Gev-isser’s affidavit, deposition excerpts, and the affidavit of M. Vincent Murphy, a member of both defendant LLCs. The magistrate judge held that the evidence sufficiently established that the defendants were citizens of Georgia on the date the suit was filed, but Gevisser’s affidavit was inadequate to show that none of the members or partners of the Alliant plaintiffs were citizens of Georgia. The court noted that the affidavit did not clearly address the Alliant plaintiffs’ citizenships on the date the suit was filed, simply asserted that various members were citizens of certain states without elaboration, and did not provide enough information to determine the citizenships of certain member trusts. The magistrate judge granted leave to file supplemental briefing to determine the citizenship of all partners and members of the Alliant plaintiffs.

The Alliant plaintiffs filed an amended statement of citizenship that included a second Gevisser affidavit, which again said that the declaration was based on Gevis-ser’s personal knowledge and review of books and records of the Alliant Company, LLC, and related entities, and declarations by purported partners and members of the Alliant plaintiffs explaining where the individuals resided and their intent to remain at the time the complaint was filed. Thom-asville and Muscogee challenged the statement from the Alliant plaintiffs. At a status conference, the Alliant plaintiffs were ordered to file a declaration to explain the relationship of entities that had been listed as interested parties and to file the documents relied upon by Gevisser in his second affidavit.

The Alliant plaintiffs then filed a third Gevisser affidavit to address the relationship of the entities listed as interested parties. They later filed 22 exhibits and a response brief to address the district court’s order to produce documents supporting the second Gevisser affidavit. The exhibits consisted of redacted excerpts of business agreements and tax returns involving Alliant companies, publicly filed court pleadings, and information that had been filed with the Federal Deposit Insurance Corporation. In reply to the response by Thomasville and Muscogee responded to the Alliant plaintiffs’ filings, the Alliant plaintiffs attached a fourth affidavit by Gevisser, which was meant to supplement his previous declarations and clarify that he has personal knowledge of how the Alliant Company, LLC, and the Alliant plaintiffs maintained their records.

The magistrate judge determined that the first three Gevisser affidavits were inadmissible on hearsay and trustworthiness grounds, struck the fourth Gevisser affidavit as untimely and unreliable, and found that the Alliant plaintiffs failed to meet their burden of establishing that complete diversity existed when the complaint was filed. Accordingly, he vacated the 2014 judgment in favor of the Alliant plaintiffs and dismissed the case for lack of subject matter jurisdiction.

We review de novo a district court order dismissing a case for lack of subject matter jurisdiction, viewing the facts in the light most favorable to the plaintiffs. Parise v. Delta Airlines, Inc., 141 F.3d 1463, 1465 (11th Cir. 1998). We review the district court’s evidentiary rulings for clear abuse of discretion. Aycock v. R.J. Reynolds Tobacco Co., 769 F.3d 1063, 1068 (11th Cir. 2014).

District courts have subject matter jurisdiction based on diversity if the amount in controversy exceeds $75,000 and the case is between citizens of different states. 28 U.S.C. § 1332(a). For diversity to exist, there must be complete diversity: “every plaintiff must be diverse from every defendant.” Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir. 1998).

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Bluebook (online)
713 F. App'x 821, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alliant-tax-credit-fund-xvi-ltd-v-thomasville-community-housing-llc-ca11-2017.