New York Pizzeria, Inc.

• Court: District Court, S.D. Texas
• Decided: July 13, 2020
• Docket: 4:20-cv-01799
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT July 13, 2020 FOR THE SOUTHERN DISTRICT OF TEXAS David J. Bradley, Clerk HOUSTON DIVISION NEW YORK PIZZERIA, INC., § Plaintiff, § § v. § CIVIL ACTION NO. H-20-1799 § DAVID MARTINEZ, et al., § Defendants. § MEMORANDUM AND ORDER This case is before the Court on the Motion to Dismiss [Doc. # 11] filed by Defendants David Martinez, RGV Franchise Developers, L.L.C., Malfitany Past Company, LLC, and Wingman Restaurants, Inc. Plaintiff New York Pizzeria, Inc. has neither filed a response in opposition to the Motion to Dismiss, nor requested additional time to do so.1 Having reviewed the full record and governing legal authorities, the Court grants the Motion to Dismiss and dismisses this action for lack of subject matter jurisdiction.

1 Generally, the Court would allow Plaintiff additional time to file a response. In this case, however, the undisputed record establishes that complete diversity is absent. Therefore, the Court need not require a response from Plaintiff. Indeed, a Court is obligated to consider sua sponte whether it has subject matter jurisdiction. See Fort Bend Cty., Texas v. Davis, __ U.S. __, 139 S. Ct. 1843, 1849 (June 3, 2019); Gonzalez v. Thaler, 565 U.S. 134, 141 (2012); Punch v. Bridenstine, 945 F.3d 322, 330 (5th Cir. 2019). P:\ORDERS\1-2020\1799MD.wpd 200713.1640 In the Complaint, Plaintiff alleges that it is a Texas corporation doing business in Houston. See Complaint [Doc. # 1], ¶ 1. Plaintiff alleges, and Defendants do not

disagree, that Defendant David Martinez is a Texas citizen (¶ 2), Defendants RGV Franchise Developers, L.L.C. and Malfitany Pasta Company, LLC are Texas limited liability corporations (¶¶ 3-4), and Defendant Wingman Restaurants, Inc. is a Texas

corporation (¶ 4). Defendants Jose and Pamela Martinez are citizens of Florida. See id., ¶¶ 6-7. The case involves a breach of contract claim and a fraud claim, and Plaintiff asserts jurisdiction under 28 U.S.C. § 1332(a) because “there are Defendants

from another state.” See id., ¶ 9. The federal district courts have original jurisdiction over all civil actions where the matter in controversy exceeds $75,000 and is “between citizens of a state and citizens or subjects of a foreign state.” See 28 U.S.C. § 1332(a). “Diversity

jurisdiction requires an amount in controversy exceeding $75,000 and ‘complete diversity’ of parties -- that all persons on one side of the controversy be citizens of different states than all persons on the other side.” Moss v. Princip, 913 F.3d 508, 514

(5th Cir. 2019) (internal quotations and citation omitted); see also ExxonMobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 553 (2005) (“the presence in the action of a single plaintiff from the same State as a single defendant deprives the district court of

original diversity jurisdiction over the entire action”). 2 P:\ORDERS\1-2020\1799MD.wpd 200713.1640 It is undisputed that Plaintiff and multiple Defendants are citizens of Texas. As aresult, complete diversity of citizenship is absent and the Court lacks subject matter jurisdiction under § 1332(a). It is, therefore, hereby ORDERED that Defendants’ Motion to Dismiss [Doc. # 11] is GRANTED and this case is DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction. The Court will issue a separate Final Order of Dismissal. SIGNED at Houston, Texas, this 13thday of July, 2020.

SENIOR UNI STATES DISTRICT JUDGE

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