UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Greenline CDF Subfund XVIII LLC
v. Civil No. 20-cv-707-JD Opinion No. 2020 DNH 204 CSC Group Holdings, LLC
O R D E R
Greenline CDF Subfund XVIII LLC alleges a claim of breach
of guaranty against CSC Group Holdings, LLC that arose when
Berlin Station, LLC defaulted on its loan obligations that were
allegedly guaranteed by CSC Group Holdings, LLC, and CSC
allegedly defaulted on its guaranty obligations. In bringing
suit in federal court, Greenline asserted subject matter
jurisdiction based on diversity of citizenship under 28 U.S.C.
§ 1332. An issue has arisen about the citizenship of CSC, and
Greenline moves to compel CSC to file an affidavit that
identifies the citizenship of its members or to answer an
interrogatory for the same purpose.
Standard of Review
For subject matter jurisdiction based on diversity of
citizenship to exist, the suit must be between citizens of
different states. § 1332(a)(1). An individual is a citizen of
the state in which he is domiciled, meaning “the place where he has his true, fixed home and principal establishment, and to
which, whenever he is absent, he has the intention of
returning.” Aponte-Davila v. Municipality of Caguas, 828 F.3d
40, 46 (1st Cir. 2016). A corporation is a citizen of the state
where it is incorporated and of the state where it maintains its
principal place of business. § 1332(c)(1). A limited liability
company is a citizen of every state of which its members are
citizens. D. B. Zwirn Special Opportunities Fund, L.P. v.
Mehrotra, 661 F.3d 124, 126 (1st Cir. 2011).
The party asserting jurisdiction bears the burden of
showing that it exists.1 Aponte-Davila, 828 F.3d at 46. A
variety of factors are relevant to determining an individual’s
domicile, including the party’s “current residence; voting
registration and voting practices; location of personal and real
property; location of brokerage and bank accounts; membership in
unions, fraternal organizations, churches, clubs and other
associations; place of employment or business; driver’s license
and other automobile registration; and payment of taxes.” Id.
None of the factors are dispositive and instead a determination
1 In addition, before this case can proceed, the court must confirm that subject matter jurisdiction exists. United States ex rel. Willette v. Univ. of Mass., 812 F.3d 35, 44 (1st Cir. 2016).
2 of domicile depends on both the number of contacts with a state
and the substantive nature of the contacts. Id. at 47.
Background
Greenline alleges that it is a Delaware limited liability
company with two members: Berlin Biopower Investment Fund 2,
LLC and Greenline Community Development Fund, LLC. Greenline
alleges that its member LLCS are citizens of Colorado, Florida,
Minnesota, and Washington, D.C., for purposes § 1332. Greenline
alleges that CSC’s only member is an individual who is domiciled
in New Hampshire.
Discussion
In the motion, Greenline states that the jurisdiction issue
arose when CSC denied knowledge of the jurisdictional
allegations in the complaint. In a subsequent communication,
counsel for CSC suggested that diversity may be lacking.
Greenline then attempted to have CSC confirm the citizenship of
its members but is not satisfied with CSC’s response. Greenline
asks that CSC be ordered to file an affidavit that identifies
its members and their states of citizenship within ten days or
that it be allowed to propound an interrogatory that seeks the
same information within the same time.
3 CSC represents that it has provided all the information it
has that is relevant to the citizenship of its members. CSC
states that it cannot certify under oath the citizenship of its
members because it does not have the necessary information,
including where each member may intend to reside. CSC
represents that it has approximately eighty members, that it has
a mailing address list for purpose of communicating with its
members, and that the list includes addresses in Florida,
Colorado, and the District of Columbia, where members of
Greenline are also citizens. CSC represents that it has
provided the address list to Greenline.
The information provided by CSC apparently includes cities,
states, and zip codes for its eighty investors but does not
include the investors’ names or information about whether the
investors are individuals or entities that may also have
members. Greenline contends that the information provided is
insufficient and seeks an order requiring CSC to identify its
members citizenship through an affidavit or an answer to an
interrogatory.
Greenline cites D. B. Zwirn, 661 F.3d at 127, in support of
an order requiring CSC to submit an affidavit identifying the
citizenship of its members. In D. B. Zwirn, however, the court
ordered the plaintiff “to file an affidavit of jurisdictional
facts describing the identities and place of citizenship of each
4 and all of the members.”2 661 F.3d at 127 (emphasis added). As
such, D. B. Zwirn demonstrates that a court has the authority to
order a party to provide jurisdictional information.3 It is not
authority to require a party to state under oath the citizenship
of its members.
As is provided above, citizenship for purposes of § 1332 is
based on a party’s domicile, which presents a mixed question of
law and fact for the court to determine. Aponte-Davila, 828
F.3d at 46. In making that determination, a court considers a
multitude of factors as are listed above. Id. The court may
rely on a paper record or may hold an evidentiary hearing. Id.;
Winstein-Bacal v. Wendt-Hughes, 2011 WL 1259831, at *4 (D.P.R.
Mar. 30, 2011). Greenline bears the burden of showing that
diversity of citizenship exists.
2 In referring to its prior order, the court summarized the order as requiring the plaintiff to identify the citizenship of each of its members. Nevertheless, the order required facts to describe the members’ citizenship. The court also allowed the defendant to file a response to notify the court whether he contested the plaintiff’s affidavit.
3 The cases from other jurisdictions that Greenline cites are not to the contrary. See also, e.g., Mithril GP Employee Feeder LLC v. McKellar, 2020 WL 3206555, at *2 (D. Del. June 15, 2020); MidCap Media Fin., LLC v. Pathway Data, Inc., 2019 WL 6699789, at *2 (Dec. 9, 2019); Clark v. SL Western Lounge, LLC, 2018 WL 6246885 (E.D. Mo. Nov. 29, 2018). Although additional cases cited in Greenline’s reply use the short cut terminology of an affidavit to confirm the citizenship of an LLC’s members, those cases are better understood to seek facts on which to determine citizenship.
5 Instead of seeking facts that describe CSC’s members’
citizenship, Greenline proposes that the court order CSC to make
a legal determination as to the citizenship of its members and
to represent the citizenship of each under oath. Alternatively,
Greenline may be seeking an order to require an admission from
CSC under
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Greenline CDF Subfund XVIII LLC
v. Civil No. 20-cv-707-JD Opinion No. 2020 DNH 204 CSC Group Holdings, LLC
O R D E R
Greenline CDF Subfund XVIII LLC alleges a claim of breach
of guaranty against CSC Group Holdings, LLC that arose when
Berlin Station, LLC defaulted on its loan obligations that were
allegedly guaranteed by CSC Group Holdings, LLC, and CSC
allegedly defaulted on its guaranty obligations. In bringing
suit in federal court, Greenline asserted subject matter
jurisdiction based on diversity of citizenship under 28 U.S.C.
§ 1332. An issue has arisen about the citizenship of CSC, and
Greenline moves to compel CSC to file an affidavit that
identifies the citizenship of its members or to answer an
interrogatory for the same purpose.
Standard of Review
For subject matter jurisdiction based on diversity of
citizenship to exist, the suit must be between citizens of
different states. § 1332(a)(1). An individual is a citizen of
the state in which he is domiciled, meaning “the place where he has his true, fixed home and principal establishment, and to
which, whenever he is absent, he has the intention of
returning.” Aponte-Davila v. Municipality of Caguas, 828 F.3d
40, 46 (1st Cir. 2016). A corporation is a citizen of the state
where it is incorporated and of the state where it maintains its
principal place of business. § 1332(c)(1). A limited liability
company is a citizen of every state of which its members are
citizens. D. B. Zwirn Special Opportunities Fund, L.P. v.
Mehrotra, 661 F.3d 124, 126 (1st Cir. 2011).
The party asserting jurisdiction bears the burden of
showing that it exists.1 Aponte-Davila, 828 F.3d at 46. A
variety of factors are relevant to determining an individual’s
domicile, including the party’s “current residence; voting
registration and voting practices; location of personal and real
property; location of brokerage and bank accounts; membership in
unions, fraternal organizations, churches, clubs and other
associations; place of employment or business; driver’s license
and other automobile registration; and payment of taxes.” Id.
None of the factors are dispositive and instead a determination
1 In addition, before this case can proceed, the court must confirm that subject matter jurisdiction exists. United States ex rel. Willette v. Univ. of Mass., 812 F.3d 35, 44 (1st Cir. 2016).
2 of domicile depends on both the number of contacts with a state
and the substantive nature of the contacts. Id. at 47.
Background
Greenline alleges that it is a Delaware limited liability
company with two members: Berlin Biopower Investment Fund 2,
LLC and Greenline Community Development Fund, LLC. Greenline
alleges that its member LLCS are citizens of Colorado, Florida,
Minnesota, and Washington, D.C., for purposes § 1332. Greenline
alleges that CSC’s only member is an individual who is domiciled
in New Hampshire.
Discussion
In the motion, Greenline states that the jurisdiction issue
arose when CSC denied knowledge of the jurisdictional
allegations in the complaint. In a subsequent communication,
counsel for CSC suggested that diversity may be lacking.
Greenline then attempted to have CSC confirm the citizenship of
its members but is not satisfied with CSC’s response. Greenline
asks that CSC be ordered to file an affidavit that identifies
its members and their states of citizenship within ten days or
that it be allowed to propound an interrogatory that seeks the
same information within the same time.
3 CSC represents that it has provided all the information it
has that is relevant to the citizenship of its members. CSC
states that it cannot certify under oath the citizenship of its
members because it does not have the necessary information,
including where each member may intend to reside. CSC
represents that it has approximately eighty members, that it has
a mailing address list for purpose of communicating with its
members, and that the list includes addresses in Florida,
Colorado, and the District of Columbia, where members of
Greenline are also citizens. CSC represents that it has
provided the address list to Greenline.
The information provided by CSC apparently includes cities,
states, and zip codes for its eighty investors but does not
include the investors’ names or information about whether the
investors are individuals or entities that may also have
members. Greenline contends that the information provided is
insufficient and seeks an order requiring CSC to identify its
members citizenship through an affidavit or an answer to an
interrogatory.
Greenline cites D. B. Zwirn, 661 F.3d at 127, in support of
an order requiring CSC to submit an affidavit identifying the
citizenship of its members. In D. B. Zwirn, however, the court
ordered the plaintiff “to file an affidavit of jurisdictional
facts describing the identities and place of citizenship of each
4 and all of the members.”2 661 F.3d at 127 (emphasis added). As
such, D. B. Zwirn demonstrates that a court has the authority to
order a party to provide jurisdictional information.3 It is not
authority to require a party to state under oath the citizenship
of its members.
As is provided above, citizenship for purposes of § 1332 is
based on a party’s domicile, which presents a mixed question of
law and fact for the court to determine. Aponte-Davila, 828
F.3d at 46. In making that determination, a court considers a
multitude of factors as are listed above. Id. The court may
rely on a paper record or may hold an evidentiary hearing. Id.;
Winstein-Bacal v. Wendt-Hughes, 2011 WL 1259831, at *4 (D.P.R.
Mar. 30, 2011). Greenline bears the burden of showing that
diversity of citizenship exists.
2 In referring to its prior order, the court summarized the order as requiring the plaintiff to identify the citizenship of each of its members. Nevertheless, the order required facts to describe the members’ citizenship. The court also allowed the defendant to file a response to notify the court whether he contested the plaintiff’s affidavit.
3 The cases from other jurisdictions that Greenline cites are not to the contrary. See also, e.g., Mithril GP Employee Feeder LLC v. McKellar, 2020 WL 3206555, at *2 (D. Del. June 15, 2020); MidCap Media Fin., LLC v. Pathway Data, Inc., 2019 WL 6699789, at *2 (Dec. 9, 2019); Clark v. SL Western Lounge, LLC, 2018 WL 6246885 (E.D. Mo. Nov. 29, 2018). Although additional cases cited in Greenline’s reply use the short cut terminology of an affidavit to confirm the citizenship of an LLC’s members, those cases are better understood to seek facts on which to determine citizenship.
5 Instead of seeking facts that describe CSC’s members’
citizenship, Greenline proposes that the court order CSC to make
a legal determination as to the citizenship of its members and
to represent the citizenship of each under oath. Alternatively,
Greenline may be seeking an order to require an admission from
CSC under Federal Rule of Civil Procedure 36 rather than fact
discovery. In any case, Greenline does not appear to be making
appropriate requests for jurisdictional information from CSC.
Nevertheless, the case cannot proceed in the absence of
subject matter jurisdiction. Because CSC has represented that
at least three of its members have mailing addresses in states
where Greenline’s members are alleged to be citizens,
information about the citizenship of those members is an
appropriate starting point. CSC shall provide the identities of
its members, if any, who live in Florida, Minnesota, Colorado,
and/or Washington, D.C., with their addresses and their status
as individuals or entities (such as, corporations, partnerships,
or limited liability companies).
If any member is a corporation, CSC shall include the state
of incorporation and the principal place of business. If the
members are individuals, CSC shall include sufficient
information to make a determination of citizenship. If a member
or members are partnerships or limited liability companies, CSC
shall provide a list of the component members, identifying each
6 member’s status and component members if applicable, with
addresses. As is noted above, the case cannot proceed beyond
this preliminary stage unless and until the court determines
that subject matter jurisdiction exists.
Conclusion
For the foregoing reasons, the plaintiff’s motion for an
order directing the defendant to identify its citizenship in an
affidavit or in response to an interrogatory (document no. 14)
is granted in part, as is provided below, and is otherwise
denied.
Counsel for the defendant shall file a report, either in
the form of an affidavit or as a representation to the court
under Federal Rule of Civil Procedure 11, on or before December
13, 2020, that provides jurisdictional facts about members of
CSC Group Holdings, LLC, who have addresses in Florida,
Minnesota, Colorado, and/or Washington, D.C.
Based on the information provided, the plaintiff shall
voluntarily dismiss the case without prejudice for lack of
subject matter jurisdiction, file a memorandum to show that
complete diversity exists to support subject matter jurisdiction
under § 1332, or file a motion for additional jurisdictional
information, if necessary. That filing shall be made within
7 fourteen days after the defendant files the ordered
jurisdictional information.
SO ORDERED.
______________________________ Joseph A. DiClerico, Jr. United States District Judge November 24, 2020
cc: Counsel of record.