Jay Redford v. P BLM Companies, LLC, et al.

2020 DNH 178

• Court: District Court, D. New Hampshire
• Decided: October 21, 2020
• Docket: 19-cv-1152-LM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Jay Redford

v. Civil No. 19-cv-1152-LM Opinion No. 2020 DNH 178 P BLM Companies, LLC, et al.

ORDER

This case arises from injuries plaintiff allegedly sustained when he slipped

and fell on property owned by the United States Department of Housing and Urban

Development (“HUD”). In both his original and first amended complaint, plaintiff

sued HUD under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671 et seq.,

and brought state law negligence claims against HUD’s subcontractors. Jurisdiction

over the FTCA claim was premised upon 28 U.S.C. §§1331 and 1346(b), and

jurisdiction over the state law claims was premised upon 28 U.S.C. § 1367.

The court dismissed plaintiff’s FTCA claim on August 10, 2020 and directed

him to show cause why his supplemental state law claims should not also be

dismissed. Doc. no. 50. In response, plaintiff filed an assented-to motion seeking to

amend his complaint to proceed under diversity jurisdiction. See 28 U.S.C. § 1332;

doc. no. 52. Plaintiff argued in his motion that all the facts necessary to establish

the diversity of the parties were already in his complaint. In an endorsed order, the

court granted plaintiff’s motion “to the extent the motion requests leave to file an

amended complaint to allege facts sufficient to establish diversity jurisdiction over the state law claims.” Plaintiff thereafter filed a second amended complaint. The

court must now determine whether plaintiff has alleged facts sufficient to show

diversity jurisdiction.

Diversity jurisdiction requires complete diversity of citizenship between the

plaintiffs and defendants. See 28 U.S.C. § 1332(a)(1); Piccioto v. Continental Cas.

Co., 512 F.3d 9, 17 (1st Cir. 2008). Here, plaintiff named four defendants in his

second amended complaint: BLM Companies, LLC (“BLM”); Northsight Property,

LLC (“Northsight”); A-Son’s Construction, Inc. (“A-Son’s”); and Bruce Clark. For

diversity purposes, a limited liability company (“LLC”), like BLM and Northsight, is

deemed to be a citizen of every state of which any of its members is a citizen. See

D.B. Zwirn Special Opportunities Fund, L.P. v. Mehrohtra, 661 F.3d 124, 125 (1st

Cir. 2011). A corporation, such as A-Son’s, is deemed to be a citizen of both its state

of incorporation and the state in which it has its principal place of business.

Wachovia Bank v. Schimdt, 546 U.S. 303, 306 (2006). For natural persons, like

plaintiff and Clark—as well as any natural persons who are members of an LLC,

and whose citizenship therefore determines the LLC’s citizenship—citizenship is

determined by domicile. Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 929

(1989); accord Padilla-Mangual v. Pavia Hosp., 516 F.3d 29, 31 (1st Cir. 2008).

“A person’s domicile is 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.” Padilla-Mangual, 516 F.3d at 31 (quotation omitted). “Proving

domicile requires two showings: (1) physical presence in a place, and (2) the intent

2 to make that place one’s home.” Aponte-Davila v. Munic. of Caguas, 828 F.3d 40, 46

(1st Cir. 2016). “Necessarily then, domicile and residence are not the same thing,”

id., and “a statement that [a] party is a ‘resident’ of a particular state or foreign

country has been held by a number of courts not to be sufficient,” 5 Charles Alan

Wright & Arthur R. Miller, Federal Practice and Procedure § 1208 (3d ed.). This is

the law in the First Circuit. See Garcia v. Bernabe, 288 F.2d 60, 61 (1st Cir. 1961);

Gans v. Gant, No. 12-cv-279-SM, 2013 WL 3354436, at *3 (D.N.H. July 3, 2013).

The party invoking the court’s jurisdiction has the burden of alleging facts

sufficient to support a conclusion that jurisdiction exists. See Gans, 2013 WL

3354436, at *3. Here, the allegations in plaintiff’s second amended complaint cannot

support a conclusion that there is diversity of citizenship. The second amended

complaint states that plaintiff “resides” in New Hampshire, and that defendant

Bruce Clark “resides” in Vermont. Doc. no. 53 ¶¶ 3, 9. “Mere allegations of

residency, rather than citizenship, are insufficient to invoke this court’s diversity

jurisdiction.” Gans, 2013 WL 3354436, at *3; see Aponte-Davila, 828 F.3d at 46;

Garcia, 288 F.2d at 61. As to the LLC defendants, the second amended complaint

states that “the sole member of BLM Companies LLC is Brent Martin, 2038 S.

Great Basin Drive, St. George, UT 84780,” and that “the members of Northsight

Property, LLC are: Robert Chase, 13860 N. Northsight Blvd. Scottsdale AZ[,] 85260,

and Kimberly A. Chase, 13860 N. Northsight Blvd. Scottsdale, AZ[,] 85260.” Id. ¶¶

5, 7. However, these allegations cannot support a conclusion that Martin is a citizen

3 of Utah, or that Mr. and Ms. Chase are citizens of Arizona. See, e.g., Aponte-Davila,

828 F.3d at 46.

Accordingly, plaintiff’s second amended complaint does not allege facts

sufficient to demonstrate that the court has diversity jurisdiction over his claims.

Plaintiff shall file an affidavit of jurisdictional facts no later than October 21, 2020.

The affidavit must set forth sufficient facts for the court to determine the domiciles

of plaintiff, Clark, and all members of BLM and Northsight, as of the date this

action was filed. If the affidavit does not do so, this case will be dismissed for lack of

subject matter jurisdiction.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

October 7, 2020

cc: James E. Fiest, Esq. Lawrence B. Gormley, Esq. Clara E. Lyons, Esq. Michael T. McCormack, Esq. Christopher J. Poulin, Esq.