Unipessoal v. Specialty Fuels Bunkering, LLC
Decision Date | 11 June 2014 |
Docket Number | CIVIL ACTION NO. 13-00545-KD-C |
Parties | FRATELLI COSULICH UNIPESSOAL, S.A. f/k/a FRATELLI COSULICH CONSULTADORIA E PARTICIPACOES UNIPESSOAL, LDA, Plaintiff, v. SPECIALTY FUELS BUNKERING, LLC, and SPECIALTY FUELS BTU, LLC, Defendants. |
Court | U.S. District Court — Southern District of Alabama |
This action is before the Court on the Second Motion for Leave to File Second Amended Complaint ("Second Motion to Amend") (Doc. 27) filed by Plaintiff Fratelli Cosulich Unipessoal S.A. f/k/a Fratelli Cosulich Consultadoria e Participacoes Unipessoal, LDA ("Cosulich"), the objections to the motion (Doc. 28) filed by Defendant Specialty Fuels BTU, LLC ("BTU"), and Cosulich's reply to those objections (Doc. 29). Upon consideration, the Court finds that the Second Motion to Amend (Doc. 27) is due to be GRANTED.
By way of background, the Court previously denied Cosulich's first Motion for Leave to Amend Complaint (Doc. 10), determining for several reasons that both the original Complaint (Doc. 1) and Cosulich's first proposed amended complaint (Doc. 10, Ex. 1) failed to allege sufficient facts demonstrating the requisite diversity of citizenship by which this Court could exercise subject matter jurisdiction over this action under 28 U.S.C. § 1332, the only basis for jurisdiction Cosulich asserts. (Doc. 15). Cosulich was directed to file a second motion to amend its complaint, attaching a second proposed amended complaint "that properly alleges sufficient facts to establish diversity jurisdiction, or some other basis for subject-matter jurisdiction, over this action." (Id. at 7). After being granted several extensions, Cosulichtimely filed its Second Motion to Amend (Doc. 27), which is fully briefed (Docs. 28, 29) and ripe for adjudication.
"[B]ecause a federal court is powerless to act beyond its statutory grant of subject matter jurisdiction," Smith v. GTE Corp., 236 F.3d 1292, 1299 (11th Cir. 2001), the Court must first determine whether Cosulich has pled sufficient facts in its Second Motion to Amend and attached second proposed amended complaint to establish subject matter jurisdiction over this action. See Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999) (); Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994) ().
Cosulich continues to assert diversity under § 1332 as the sole basis for the Court's jurisdiction over this action. Regarding its own citizenship, Cosulich first alleges that it is a "Sociedade Anomima," or "S.A.," organized under Portuguese law, and that it should be treated as a corporation for purposes of diversity. Cosulich represents that, under Portuguese law, the designation "S.A." signifies an entity as a "stock corporation company," which is distinct from the designation "Sociedade Comandita por Accoes," or a "partnership by shares." Cosulich cites to a number of characteristics that it claims make it equivalent to a corporation under United States law, such as: its ownership is represented by shares; shareholders are free from personal liability and their liability is limited to the shares to which they have subscribed; it operates under Articles of Association establishing a Board of Directors; its name must be registered with the National Registration of Portuguese Companies and be followed by the designation "S.A." If Cosulich is treated as a corporation for purposes of diversity, then it would be a citizen of Portugal, as it was organized under Portuguese law and has its principalplace of business there. See (Doc. 27-1 at 1-2, ¶ 1; Doc. 27 at 5-7); § 1332(c)(1) ( ).
Cosulich asserts in the alternative that, if it is to be treated as an unincorporated entity for purposes of diversity, then it is a citizen of Italy, as its sole shareholder is Fratelli Cosulich S.p.A., an Italian corporation with its principal place of business in Italy.1 See (Doc. 27 at 7-8); Iraola & CIA, S.A. v. Kimberly-Clark Corp., 232 F.3d 854, 860 (11th Cir. 2000) .
For purposes of establishing diversity jurisdiction, the Court need not determine whether Cosulich is to be treated as a corporation (and thus a citizen of Portugal) or unincorporated entity (and thus a citizen of Italy), as complete diversity of citizenship has been alleged regardless, see infra.
Grupo Dataflux v. Atlas Global Grp., L.P., 541 U.S. 567, 570-71 (2004) (quotation omitted). The original Complaint asserted claims against two Defendants, BTU and Specialty Fuels Bunkering, LLC ("Bunkering"), both Alabama limited liability companies (LLCs). (Doc. 1). For purposes of assessing diversity of citizenship, "a limited liability company is a citizenof any state of which a member of the company is a citizen." Rolling Greens, MHP, L.P. v. Comcast SCH Holdings, L.L.C., 374 F.3d 1020, 1022-23 (11th Cir. 2004) (per curiam). Accord Mallory & Evans Contractors & Engineers, LLC v. Tuskegee Univ., 663 F.3d 1304, 1305 (11th Cir. 2011)(per curiam).
Cosulich's proposed second amended complaint ("the PSAC") (Docs. 27-1 - 27-3) alleges that, at the time this action was commenced on November 6, 2013, BTU had one member, F. Javier Brito ("Brito"), a natural person who is a citizen of the United States and domiciled in Alabama. (Doc. 27-1 at 5, ¶ 3). Bunkering is alleged to have had two members at the time this action was commenced: Brito and CCC Holdings, LLC, an Alabama LLC whose sole member is Scott Cleveland, a United States citizen domiciled in Alabama. (Id. at 3-4, ¶ 2). Thus, at the time this action commenced, BTU and Bunkering were citizens of Alabama. McCormick v. Aderholt, 293 F.3d 1254, 1257-58 (11th Cir. 2002) (per curiam) ( . Based on these allegations, unchallenged by the Defendants, complete diversity of citizenship existed at the time this action commenced between Cosulich (a citizen of either Portugal or Italy) and Defendants Bunkering and BTU (both Alabama citizens). See, e.g., Vermeulen v. Renault, U.S.A., Inc., 985 F.2d 1534, 1542 (11th Cir. 1993) (). As the Court has already determined (see Doc. 15 at 2, n.2), the original Complaint also alleged sufficient facts establishing that the amount in controversy in this action exceeds $75,000, exclusive of interests and costs. Thus, Cosulich's allegations establish that the Court had diversity jurisdiction over this action at the time it was commenced. See § 1332(a)(2) (); 28 U.S.C. § 1653 ().
The PSAC retains BTU as a defendant, deletes Bunkering as a defendant, and adds Brito and Bunkers International Corporation ("BIC") as defendants. As has been established, see supra, Plaintiff Cosulich is a citizen of either Portugal or Italy, while BTU and Brito are citizens of Alabama. BIC is alleged to be incorporated under the laws of Florida and to have its principal place of business in Florida, thus making BIC a Florida citizen. See § 1332(c)(1). As such, complete diversity of citizenship exists on the face of the PSAC. Moreover, the PSAC also alleges sufficient facts establishing that the amount in controversy in this action exceeds $75,000, exclusive of interests and costs. Based on these allegations, unchallenged by the Defendants, the PSAC does not deprive the Court of diversity jurisdiction under § 1332(a)(2).
Federal Rule of Civil Procedure 15(a) provides, in relevant part, as follows:
Bunkering has not filed an answer or a motion under Federal Rule of Civil Procedure 12(b), (e),...
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