Rescoma, LLC v. Las Olas Co.
| Decision Date | 22 September 2017 |
| Docket Number | 17-61177-CIV-GAYLES/SELTZER |
| Parties | RESCOMA, LLC, Plaintiff, v. THE LAS OLAS COMPANY, INC., Defendant. |
| Court | U.S. District Court — Southern District of Florida |
THIS CAUSE comes before the Court on Defendant The Las Olas Company, Inc.'s ("Las Olas") Motion to Dismiss Complaint [ECF No. 12]. The Court has reviewed the Motion and the record and is otherwise fully advised. For the reasons set forth below, the Court GRANTS the Motion.
On April 26, 2012, Plaintiff Rescoma, LLC ("Rescoma") and Las Olas entered into a Lease Agreement whereby Las Olas leased a commercial property in Fort Lauderdale, Florida, to Rescoma. See Lease Agreement [ECF No. 12-1]. The Lease Agreement specified a term from May 1, 2012, to December 31, 2022, and contained a forum-selection clause, which provided:
73. CHOICE OF LAW. This Lease Agreement shall be construed in accordance with the laws of the State of Florida, as may be amended from time to time. Venue for any action between the parties shall only be Broward County, Florida. Any litigation conducted between the parties shall be conducted only in the Circuit orCounty Court of the Seventeenth Judicial Circuit in and for Broward County, Florida.
[Id. ¶ 73].
Rescoma operated the Grill Republic Restaurant and Bar on the premises. On August 30, 2016, Las Olas filed an eviction and breach of contract action in the Seventeenth Judicial Circuit in and for Broward County, Florida, against Rescoma. Rescoma ceased operating the Grill Republic on September 3, 2016, and returned exclusive control of the premises to Las Olas on September 23, 2016.
Broward County subsequently sent a tax notice to the Grill Republic for 2016 ad valorem taxes on its commercial personal property. Although this tax bill was not due until March 31, 2017, and Rescoma owed no money to the County for prior tax years, the Tax Collector of Broward County issued a Tax Collector's Warrant that authorized the County to levy and sell the Grill Republic's personal property. The County then issued a Notice of Sale of Tangible Personal Property for Current Taxes, and began arranging to auction Rescoma's personal property remaining at the leased Las Olas property.
Rescoma alleges that Las Olas closely coordinated with the County to auction Rescoma's personal property. The auction occurred on January 18, 2017, and brought $43,606.65. The County satisfied the tax bill of $6,982.12, deducted expenses, and delivered the $26,319.38 surplus to Las Olas. Rescoma alleges that Las Olas illegally retained the surplus.
On June 12, 2017, Rescoma filed this action in federal court alleging Civil Theft under Florida Statute § 772.11, which entitles a plaintiff to treble damages. Rescoma alleges this Court has diversity jurisdiction as the amount in controversy is $78,958.14 and the parties are diverse.
Las Olas now moves to dismiss based on lack of subject-matter jurisdiction or, in the alternative, requests that the Court dismiss the action based on the Lease Agreement's forum-selection clause.
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). The Federal Rules require that a plaintiff's Complaint contain "a short and plain statement of the grounds for the court's jurisdiction." Fed. R. Civ. P. 8(a)(1). It is the plaintiff's obligation to "affirmatively allege facts demonstrating the existence of jurisdiction." Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994). "Where, as here, the plaintiff asserts diversity jurisdiction, he has the burden to prove that there is diversity." King v. Cessna Aircraft Co., 505 F.3d 1160, 1171 (11th Cir. 2007). "Absent unusual circumstances, a party seeking to invoke diversity jurisdiction should be able to allege affirmatively the actual citizenship of the relevant parties." Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001).
Las Olas disputes diversity jurisdiction, arguing that Rescoma has failed to sufficiently plead complete diversity of citizenship between the parties.
An unincorporated entity, such as a limited partnership or limited liability company, "is a citizen of any state of which a member of the [association] is a citizen." Rolling Greens MHP, L.P. v. Comcast SCH Holdings L.L.C., 374 F.3d 1020, 1022 (11th Cir. 2004). For a natural person, "[c]itizenship, not residence, is the key fact that must be alleged in the complaint to establish diversity." Taylor, 30 F.3d at 1367.
Typically, McCormick v. Aderholt, 293 F.3d 1254, 1257-58 (11th Cir. 2002) (quoting Mas v. Perry, 489 F.2d 1396, 1399 (5th Cir. 1974)) (citations omitted). However, as the Supreme Court explained in Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826 (1989), "[i]n order to be a citizen of a State within the meaning of the diversity statute, a natural person must both be a citizen of the United States and be domiciled within the State." Id. at 828.
"Alienage jurisdiction is a form of diversity jurisdiction under which federal courts may hear cases between 'citizens of a State and citizens or subjects of a foreign state.'" Molinos Valle del Cibao, C. por A. v. Lama, 633 F.3d 1330, 1340 (11th Cir. 2011) (quoting 28 U.S.C. § 1332(a)(2)). In amendments to § 1332(a), Congress carved out an exception to this broad juris-dictional grant, denying the district courts jurisdiction over actions "between citizens of a State and citizens or subjects of a foreign state who are lawfully admitted for permanent residence in the United States and are domiciled in the same State." 28 U.S.C. § 1332(a)(2) (emphasis added).
Rescoma alleges that this Court has subject-matter jurisdiction based on the alienage jurisdiction provision in § 1332(a)(2) because the amount in controversy is $78,958.14 and all three individual members of Rescoma, LLC, are citizens of France who have not been lawfully admitted for permanent residence in the United States. Based on these allegations, Rescoma rightly concludes that for diversity jurisdiction purposes, it is not a citizen of the State of Florida. It is uncontested that Defendant Las Olas is a corporation organized under the laws of the State of Delaware with its principal place of business in Florida and is thus a citizen of Delaware and Florida for diversity jurisdiction purposes. See 28 U.S.C. § 1332(c) ().
Las Olas argues that one member of Rescoma, LLC, Michel Karsenti, has resided and conducted extensive business in Florida for a number of years, and therefore has "no plausible basis" on which to claim a lack of citizenship in the state for the purposes of diversity jurisdiction. Defs Mot. Dismiss ¶ 12, ECF No. 12. But extensive business activities and actual residence in the state are not the standard for determining the citizenship of foreign nationals for the purposes of diversity jurisdiction. Las Olas does not contradict Rescoma's assertion that Karsenti is a French citizen who has not been lawfully admitted for permanent residence in the United States. Rescoma need only "allege affirmatively the actual citizenship of the relevant parties," Kanter, 265 F.3d at 857, which it does in its Complaint. That assertion alone resolves the issue: based on the facts alleged in the Complaint, Mr. Karsenti is not a citizen of the State of Florida for the purposes of diversity jurisdiction.
Because there is complete diversity between the parties and the amount in controversy exceeds $75,000, this Court has subject-matter jurisdiction over the action.
Although the Court has subject-matter jurisdiction based on the face of the Complaint, as discussed above, the Court finds this an appropriate case in which to exercise its discretion to dismiss the matter on the grounds of forum non conveniens to enforce the parties' valid and mandatory forum-selection clause.
As a preliminary matter, the Court agrees with Rescoma that a Rule 12(b)(3) motion to dismiss for improper venue is the incorrect procedural vehicle to enforce a forum-selection clause where, as here, venue is otherwise proper. See Atl. Marine Const. Co., Inc. v. U.S. Dist.Ct. for W. Dist. of Tex., 134 S. Ct. 568, 580 (2013). However, Las Olas concedes this point in its Reply and requests that the Court treat its Motion to Dismiss as a motion to dismiss based on forum non conveniens. Accordingly and in the interests of judicial economy, the Court will treat the Motion to Dismiss for improper venue as a motion to dismiss based on forum non conveniens.
"Under the doctrine of forum non conveniens, a district court has the inherent power to decline to exercise jurisdiction even when venue is proper." Vanderham v. Brookfield Asset Mgmt., Inc., 102 F. Supp. 3d 1315, 1318 (S.D. Fla. 2015) (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 506-07 (1947), superseded by statute on other grounds as recognized in Am. Dredging Co. v. Miller, 510 U.S. 443 (1994)). Although a court may consider matters outside the pleadings in ruling on a motion to dismiss based on forum non conveniens, it "must draw all reasonable inferences and resolve all factual conflicts in favor of the plaintiff." Id. (quoting Wai v. Rainbow Holdings, 315 F. Supp. 2d 1261, 1268 (S.D. Fla. 2004)). "To obtain dismissal for forum non conveniens, '[t]he moving party must demonstrate that (1) an...
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