Corvinus v. Petrolane, Inc.

• Court: District Court, D. New Hampshire
• Decided: April 28, 1997
• Docket: CV-96-25-JD
• Status: Published

Opinion

Corvinus v. Petrolane, Inc. CV-96-25-JD 04/28/97 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Richard J. Corvinus, et al.

v. Civil No. 96-25-JD

Petrolane Inc., et al.

O R D E R

The plaintiffs, Richard and Lynn Corvinus, brought this

diversity action against the defendants, Petrolane, Inc. and

Americas Propane, L.P., seeking damages related to an accident

caused by a direct vent propane heater installed by the

defendants' predecessor-in-interest in the plaintiffs' garage.

Before the court is the defendants' motion to dismiss for lack of

subject matter jurisdiction (document no. 31) and the plaintiffs'

motion to amend their amended complaint (document no. 33).

Background

On January 17, 1996, the plaintiffs. New Hampshire citizens,

filed this action against Americas, Inc., a Pennsylvania

corporation and Petrolane, Inc., a California corporation.

Following a hearing held on March 19, 1997, before Magistrate

Judge James Muirhead, the plaintiffs filed a motion to amend

their complaint to reflect a series of 1995 transactions through

which Petrolane, Inc. transferred a portion of its business operations to AmeriGas Propane, L.P. and subsequently merged into

and became Petrolane, Inc., a Pennsylvania corporation. As

amended, the plaintiffs' complaint seeks relief against the "new"

Petrolane, Inc., and AmeriGas Propane, L.P., a limited

partnership organized under the laws of Delaware. AmeriGas

Propane has one general partner and one limited partner, AmeriGas

Partners, L.P., which itself is a limited partnership organized

under the laws of Delaware. It is undisputed that AmeriGas

Partners, L.P. has limited partners who are citizens of New

Hampshire.

Discussion

The defendants contend that dismissal is warranted pursuant

to Rule 12(b)(1) for lack of subject matter jurisdiction because

the New Hampshire citizens who are limited partners of AmeriGas

Partners, L.P. destroy "complete" diversity, and thus prevent the

court from exercising its diversity jurisdiction under 28 U.S.C.

§ 1332.1 The plaintiffs concede that the court lacks diversity

'in Carden v. Arkoma Assocs., the Supreme Court held that a limited partnership is considered a citizen of every state in which its general and limited partners are citizens. See 494 U.S. 185, 195 (1990). Where the partners of a limited partnership are themselves limited partnerships, the larger limited partnership is considered a citizen of every state in which the partners of the smaller limited partnerships are citizens. See, e.g., Richardson v. Edward D. Jones & Co., 744 F. Supp. 1023, 1025 (D. Colo. 1990).

2 jurisdiction over AmeriGas Propane, Inc. because of the lack of

complete diversity, but argue that the court has diversity

jurisdiction over Petrolane, Inc., and should exercise

supplemental jurisdiction over the plaintiffs' claims against

AmeriGas Propane, L.P. under 28 U.S.C. § 1367.

The plaintiffs' argument misperceives the court's ability to

exercise supplemental jurisdiction under § 1367 (a), which

provides in pertinent part:

[I]n any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.

28 U.S.C.A. § 1367(a) (West 1993) (emphasis added). This

provision merely permits the court to entertain claims that are

related to claims over which the court already has original

jurisdiction. See ZB Holdings, Inc. v. White, 144 F.R.D. 42, 47

(S.D.N.Y. 1992).

Here, it is undisputed that the plaintiff's amended

complaint, which is asserted against both Petrolane, Inc. and

AmeriGas Propane, L.P., is lacking in complete diversity.

Because complete diversity is necessary to invoke the court's

original jurisdiction under 28 U.S.C. § 1332, the court does not

possess original jurisdiction over the plaintiff's amended

3 complaint, and cannot exercise jurisdiction over the plaintiff's

claims against AmeriGas Propane under § 1367(a).2 Accordingly,

the court grants the defendants' motion to dismiss pursuant to

Rule 12 (b) (1) .

Conclusion

The defendant's motion to dismiss for lack of subject matter

jurisdiction (document no 31) is granted. The plaintiffs' motion

2The plaintiffs correctly note that 28 U.S.C. § 1367(b), which prevents the court from exercising supplemental jurisdiction over claims by the plaintiff against persons made parties under Fed. R. Civ P. 14, 19, 20, or 24 where such supplemental jurisdiction would be "inconsistent with the jurisdictional reguirements of section 1332," is not applicable to this case because those rules have not been invoked to add a nondiverse party. Contrary to the plaintiff's assertions, however, this conclusion does not mean that the complete diversity reguirement of § 1332 is inapplicable to the plaintiff's amended complaint. Rather, the court analyzes the complete diversity reguirement in assessing whether the amended complaint falls within the court's original jurisdiction under § 1367 (a) . This approach avoids the anomalous result of permitting a plaintiff's complaint to name a nondiverse party as a defendant, but preventing the same plaintiff from asserting the same claims against a nondiverse person made a party to litigation through third-party practice, joinder, or intervention.

4 to amend their amended complaint (document no. 33) is denied as

moot. The clerk is ordered to close the case.

SO ORDERED.

Joseph A. DiClerico, Jr. Chief Judge

April 28, 1997

cc: Richard A. Mitchell, Esquire Steven L. Smith, Esquire Charla Bizios Labbe, Esquire Frank W. Beckstein III, Esquire