United States District Court,

S.D. Ohio, Eastern Division.

Niko C. MILLER, Plaintiff,

v.

TST TRANSFORCE, et al., Defendants.

Case No. 2:15-cv-178

|

Signed 03/21/2017

Attorneys and Law Firms

Stephen Andrew Moyer, Columbus, OH, for Plaintiff.

Jessica A. Reese, Joseph Jude Golian, Dickie, McCamey & Chilcote, P.C., Columbus, OH, for Defendants.

 

 

OPINION AND ORDER

EDMUND A. SARGUS, JR., CHIEF UNITED STATES DISTRICT JUDGE

*1 This matter is before the Court on Defendants TST Solutions, L.P., TST Truckload Express and Amar Iqbal Singh Virk’s Motion for Summary Judgment (ECF No. 34.) Plaintiff has also filed a Motion to Strike (ECF No. 41.) For the reasons that follow, the Motion for Summary Judgment (ECF No. 34) is DENIED. Plaintiff’s Motion to Strike (ECF No. 41) is DENIED as MOOT.

 

 

1. BACKGROUND

On January 21, 2015, Defendants TST Transforce and Mr. Virk (also referred to as “Mr. Iqbal”) removed this action from the Court of Common Pleas of Franklin County, Ohio, on the basis of diversity jurisdiction, pursuant to 28 U.S.C. § 1332(a)(1). (ECF No. 1.) Plaintiff is a citizen of the state of Ohio. Defendant TST TransForce is incorporated in and has its principal place of business in Canada, and Defendant Virk is a citizen of Canada. (Id.)

 

Plaintiff brings two claims arising from an automobile accident: the first claim is for personal injury and attendant damages based on Defendant Virk’s alleged negligence, and the second claim is against the trucking company under the doctrine of respondeat superior. (Compl., ECF No. 2.) The accident giving rise to this lawsuit occurred in Franklin County, Ohio, on the evening of December 7, 2012. (Id.) It is undisputed that it was dark and rainy, and that Virk was driving his semi tractor-trailer on Route 33. It is also undisputed that Plaintiff was stopped at a stop sign on Bixby Road perpendicular to the Route 33 prior to entering the highway. It is undisputed that Plaintiff made the turn onto the highway. Defendant Virk asserts that when he activated his brake in an attempt to avoid colliding with Plaintiff, his trailer jack-knifed. (Virk Dep., ECF No. 33-2, at 81.) The trailer struck Plaintiff’s car. Plaintiff claims that Virk “negligently operated a motor vehicle thereby causing personal injury to Plaintiff Niko C. Miller, who was operating his vehicle within the lawful use of the highway.” (Compl., ECF No. 2, ¶ 2.) Defendant Virk asserts a counterclaim, alleging that, on that date, “Plaintiff negligently operated his motor vehicle [on] West Jefferson Avenue, Franklin County, Ohio, causing it to collide with Defendant Iqbal’s [Virk’s] semi-tractor trailer.” (ECF No. 7, at p. 7, ¶ 6.) Defendants have moved for summary judgment (Def.’s Mot., ECF No. 34), and the Plaintiff has filed his memorandum in opposition (Pl.’s Opp., ECF No. 38.) The motion is ripe for consideration.

 

 

1. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Court may therefore grant a motion for summary judgment if the nonmoving party who has the burden of proof at trial fails to make a showing sufficient to establish the existence of an element that is essential to that party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The “party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, identifying those portions” of the record which demonstrate “the absence of a genuine issue of material fact.” Id. at 323. The burden then shifts to the nonmoving party, who “must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting Fed. R. Civ. P. 56(e)). “The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255 (citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 158-59 (1970)). However, the Sixth Circuit has explained that, in responding to a summary judgment motion, the nonmoving party “cannot rely on the hope that the trier of fact will disbelieve the movant’s denial of a disputed fact, but must ‘present affirmative evidence in order to defeat a properly supported motion for summary judgment.” ’ Street v. J.C. Bradford & Co., 886 F.2d 1472, 1476 (6th Cir. 1989) (quoting Anderson, 477 U.S. at 257).

 

*2 A genuine issue of material facts exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. See also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 486 (1986) (the requirement that a dispute be “genuine” means that there must be more than “some metaphysical doubt as to the material facts”). Consequently, the central issue is “ ‘whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.’ ” Hamad v. Woodcrest Condo Ass’n, 328 F.3d 224, 234-35 (6th Cir. 2003) (quoting Anderson, 477 U.S. at 251-52).

 

 

III. ANALYSIS

It is undisputed that Defendant Virk was traveling in his semi tractor-trailer on Route 33. It is also undisputed that Plaintiff entered Route 33 from a different direction, having been stopped at a stop sign waiting to turn onto Route 33. Defendants contend that Defendant Virk had the right of way, asserting that “[a] driver traveling within a statutorily defined right-of-way has an absolute preference so long as the driver is driving lawfully.” (citations omitted) (Def.’s Mot., ECF No. 34, at p. 4.) O.R.C. 4511.01(UU)(1) states that:

(UU) “Right-of-way” means either of the following, as the context requires:

(1) The right of a vehicle, streetcar, trackless trolley, or pedestrian to proceed uninterruptedly in a lawful manner in the direction in which it or the individual is moving in preference to another vehicle, streetcar, trackless trolley, or pedestrian approaching from a different direction into its or the individual’s path ….

Thus, “[g]enerally, a motor vehicle has the right to proceed uninterruptedly in a lawful manner in the direction in which it is traveling in preference to any vehicle or pedestrian approaching from a different direction into its path.” Neu v. Estate of Nussbaum, 2015-Ohio-159, 27 N.E. 3d 906, at ¶ 17 (12th Dist., Ohio Ct. App. 2015), 2015 Ohio App. LEXIS 139 (Jan. 20, 2015). Defendants argue that they are entitled to summary judgment against Plaintiff on the issue of the liability of Mr. Virk, the driver of the semi tractor-trailer, because he was “operating his vehicle in a lawful manner as he traveled down Route 33,” and “had the right of way to proceed uninterrupted when Plaintiff decided to shoot out into his path with no time for the tractor-trailer to stop.” (Def.’s Mot., ECF No. 34, at p. 6.) In contrast, Plaintiff presents evidence that he was traveling on Route 33 when he was struck in the rear by Defendant Virk. (Miller Dep., ECF No. 37, at p. 32.)

 

Plaintiff’s claim against Defendant Virk is a basic negligence claim. “In order to recover on a negligence claim, a plaintiff must prove (1) that the defendant owed the plaintiff a duty, (2) that the defendant breached that duty, and (3) that the breach of the duty proximately caused the plaintiff’s injury.” Chambers v. St. Mary’s School, 82 Ohio St.3d 563, 565, 697 N.E.2d 198 (1988). However, the case also implicates an Ohio safety statute, the violation of which may constitute negligence-per-se. This Ohio law is often referred to as the “assured clear distance rule.” O.R.C. 4522.21(A) provides the following:

(A) No person shall operate a motor vehicle, trackless trolley, or streetcar at a speed greater or less than is reasonable or proper, having due regard to the traffic, surface, and width of the street or highway and any other conditions, and no person shall drive any motor vehicle, trackless trolley, or streetcar in and upon any street or highway at a greater speed than will permit the person to bring it to a stop within the assured clear distance ahead.

 

*3 In Cox v. Polster, 174 Ohio St. 224, 226, 188 N.E.2d 421 (1963), the Supreme Court of Ohio addressed this rule, and stated that “[t]he only defense which may be made to a violation of this section is such assured clear distance was suddenly cut down or lessened by the entrance into the driver’s lane of travel of some obstruction which rendered him unable, in the exercise of ordinary care, to avoid colliding with such obstruction.” This “sudden emergency doctrine” is the basis for Defendants’ motion for summary judgment.

 

Defendants assert that “[i]n a negligence action, the ‘emergency doctrine’ negates liability where ‘there was a sudden and unexpected occurrence of a transitory nature which demanded immediate action without time for reflection or deliberation.’ ” Wylie v. Fed Ex Ground Package Sys., No. 3:13 CV 2798, 2015 U.S. Dist. LEXIS 99761, at *8 (N.D. Ohio July 30, 2015) (quoting Hatala v. Craft, 165 Ohio App. 3d 602, 607, 2006-Ohio-789, 847 N.E.2d 501 (7th Dist. 2006)). (Def.’s Mot., ECF No. 34, at p. 5.)

 

In Hatala, the Court provided a primer on the interaction of an allegation of negligence and the violation of a specific safety statute:

{ ¶ 18}  Normally, when a legislative enactment imposes a specific duty for the safety of others, a violation of that statute constitutes negligence per se. Id. The negligence-per-se rule is regularly applied to cases in which a vehicle crosses *607 the center line of a highway and causes an accident. Zehe v. Falkner (1971), 26 Ohio St.2d 258, 55 O.O.2d 489, 271 N.E.2d 276; Bauman v. Schmitter (1989), 54 Ohio App.3d 51, 560 N.E.2d 827.

{ ¶ 19}  It is well established, though, that “[n]egligence per se does not equal liability per se. Simply because the law may presume negligence from a person’s violation of a statute or rule does not mean that the law presumes that such negligence was the proximate cause of the harm inflicted.” Merchants Mut. Ins. Co. v. Baker (1984), 15 Ohio St.3d 316, 318, 15 OBR 444, 473 N.E.2d 827; see, also, Hitchens v. Hahn (1985), 17 Ohio St.3d 212, 214, 17 OBR 447, 478 N.E.2d 797; Hurst v. Ohio Dept. of Rehab. & Corr. (1995), 72 Ohio St.3d 325, 650 N.E.2d 104.

{ ¶ 20}  A defendant may avoid liability for negligence in violating a traffic safety statute if a sudden emergency is found to have been the proximate cause of the accident. “In a negligence action, the so-called ‘emergency doctrine’ applies only where there was a sudden and unexpected occurrence of a transitory nature which demanded immediate action without time for reflection or deliberation and does not comprehend a static condition which lasted over a period of time.” Miller v. McAllister (1959), 169 Ohio St. 487, 8 O.O.2d 485, 160 N.E.2d 231, paragraph six of the syllabus.

{ ¶ 21}  Thus, in order to avoid liability for injuries resulting from a failure to comply with a safety statute regulating the operation of a motor vehicle on the public highways, the defendant must show that an emergency occurred, that the defendant did not create the emergency, and that it was impossible to comply with the safety statute due to the emergency. Mapes v. Opper (1983), 9 Ohio App.3d 140, 141, 9 OBR 205, 458 N.E.2d 892. A self-created emergency, one arising from the defendant’s own conduct or from circumstances under his or her control, cannot serve as an excuse. Id.

Id. at 606-607. As the Hatala Court noted, “[s]ome types of sudden-emergency defenses do not easily lend themselves to resolution in summary judgment.” Id. at 607.

 

*4 In the case at bar, Plaintiff contends that, because he was struck from the rear, “a genuine issue of material fact exists as to whether Defendant Virk could reasonably have avoided the collision.” (Pls. Opp., ECF No. 38, at p. 2.) Plaintiff asserts that, “[i]n other words, the facts relied upon by Defendants do not show that it was impossible for Defendant Virk to avoid the collision with Plaintiff Miller.” (Id.)

 

Plaintiff is the only witness on his own behalf. In his deposition, he testified about the accident as follows:

1. What was the weather like?
2. It was raining pretty heavy, and it got dark early due to it raining so heavy.

***

1. What was the traffic like, the amount of traffic?
2. It was busy on 33, so the traffic was heavy.

(Pl.’s Dep., ECF No. 37, at p. 24.)

***

1. Describe for me in your own words how this accident happened.
2. I was sitting at the stop sign waiting to turn on to 33. Once I turned on to 33, I was driving down 33. I just remember being hit by something.
3. As you’re sitting at the stop sign, you said there was some traffic going down 33, right?
4. Correct.
5. Actually, there’s a lot of traffic, right?
6. Correct.
7. Your intention was to turn right down 33, right?
8. Correct.
9. Did you look to your right and to your left before proceeding on to 33?
10. I looked in front of me, I looked to my left, and I looked to my right.

(Id. at p. 26.)

***

1. Do you remember seeing a semi to your left driving down 33?
2. In the right lane that I was turning into? No.
3. Okay. So you didn’t see a semi in your right lane. Did you see a semi in your left lane?
4. No.
5. So no semi at all as you turned onto the road?
6. Correct.
7. As you’re sitting there at the stop sign, if you look left, about how far down the road can you see?
8. Over 100 yards.

***

1. And no semis?
2. I know I seen some semis, but I don’t remember what exactly lane or whether the semi was in front of me when I turned on the freeway. I don’t remember that.
3. Okay. So as you’re sitting there and you’re looking to your left and you’re looking 100 yards down the road, you know there was a semi at some point on the road?
4. Correct.
5. Do you know how far away that semi was from you?
6. There was a few semis.
7. There were more than one?
8. There was a few semis coming down the highway at the time.
9. Do you remember how many?
10. I don’t remember how many?
11. More than two?
12. I don’t remember.
13. Do you remember the color of any of the semis?
14. No.
15. And you don’t remember what lane any of the semis were in?
16. No.
17. So you sit there for about less than a minute. You turn right on to 33. Do you turn into the right lane or the left-hand lane?
18. The right lane.
19. How long were you driving down 33 before you felt an impact?
20. What do you want to know, seconds, minutes? I mean, what? Like what are you—
21. Your best way of describing it.
22. I was driving down 33, so what do you mean travelling down 33. How long? How many seconds? I made a full complete turn and was hit driving down 33.
23. Matter of seconds?
24. I don’t know how to rephrase it as far as me driving down 33. Maybe I’d be better off describing it to you in distance than seconds or minutes.
25. Okay.
26. Maybe about 50 yards from the stop sign, somewhere in there.

(Id. at pp. 28-30.)

 

Furthermore, to support the position that Defendant Virk may have been able to avoid the collision, Plaintiff points out that Defendant Virk testified in his deposition that he noticed Plaintiff “rocking” back and forth at the stop sign before Plaintiff pulled out from the stop sign and Bixby Road onto the highway. (Pl.’s Opp., ECF No. 38, at p. 4; Virk Dep., ECF No. 33-2, at p. 96.)1

 

*5 Defendant Virk’s evidence of the accident includes his own deposition testimony and the testimony of a third-party witness to support the defense of “sudden emergency.” Defendant Virk testified at deposition to his recollection of the events leading up to the accident, as follows:

1. All right. As you approached this intersection, this stop sign, you were initially in the right-hand lane?
2. Yeah. Initially I was in the right-hand lane.
3. Okay. Something was—something caused you to move or start to move from the right-hand lane to the left-hand lane, correct?
4. Yes.
5. What was that?
6. That was the car coming from the side road like bumping and rocking.

(Virk Dep., ECF No. 33-2, at 77.) Defendant Virk testified further at his deposition that Plaintiff suddenly pulled out from the stop sign onto the highway, and created a sudden emergency. Virk swore that he did not have sufficient time to brake or respond to the sudden emergency created by the Plaintiff. (Id., at 78-81.)

 

Thus, the issue is whether Plaintiff’s evidence is sufficient to present genuine unresolved issues of material fact about whether Defendant Virk had sufficient reaction time to stop or whether he faced a “sudden emergency.”2 As noted above, on summary judgment, this Court must credit the evidence of Plaintiff, as the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. at 255 (“The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.”) (citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 158-59 (1970)). Plaintiff presents evidence that he was driving 50 yards down the highway before he was struck in the rear by Defendant Virk. (Pl.’s Dep., ECF No. 37, at p. 30.) Crediting the Plaintiff’s evidence as the Court must, unresolved genuine issues of material fact remain as to Defendant Virk’s alleged negligence, the proximate cause of the accident, and the share, if any, of Plaintiff’s negligence which may have proximately caused his injuries. Plaintiff’s evidence is sufficient to present conflicting evidence about whether Defendant Virk had sufficient reaction time to stop or whether he faced a “sudden emergency.” See Ali v. Bavarian Motor Transp., Inc., No. 2:03-CV-1104, 2005 U.S. Dist. LEXIS 27808, at *12-13 (S.D. Ohio Nov. 5, 2005).

 

Viewing this evidence in a light most favorable to Plaintiff as the non-moving party, the Court finds that genuine issues of material fact remain as to whether the accident occurred so suddenly that Defendant Virk could not avoid it.

 

 

1. CONCLUSION

Based on the foregoing, Defendants’ Motion for Summary Judgment (ECF No. 34) is DENIED. Plaintiff’s Motion to Strike (ECF No. 41) is DENIED as MOOT.

 

IT IS SO ORDERED.

 

All Citations

Slip Copy, 2017 WL 1079984

 

 

Footnotes

1

That factor alone would not be a deciding factor, however, as courts have held that “[i]n determining whether [a Defendant] violated the assured-clear-distance rule, the issue is not whether he observed [Plaintiff] at any particular point in time but whether [Plaintiff] suddenly appeared in his path. Neu, at 2015 Ohio App. LEXIS 139, at ***28.

2

Plaintiff has moved to strike arguments of defense counsel and references to deposition testimony relating to Officer Schwotzer’s issuance of a traffic citation to Plaintiff, and any references to opinions from defense witnesses that the accident was unavoidable. (ECF No. 41.) The Court has not considered this information in determining whether Plaintiff, as the nonmoving party, has met his burden on summary judgment. Accordingly, Plaintiff’s motion to strike is moot.

 

 

United States District Court,

E.D. New York.

Winona Mae PALMIOTTI, Plaintiff,

v.

JAF CARRIER L.L.C. d/b/a Bagir Trucking, C.H. Robinson Company Inc., C.H. Robinson Transportation Company, C.H. Robinson Worldwide, Inc., Jose Caranza a/k/a Jose Cruz, and Jetro Cash and Carry Enterprise, LLC, Defendants.

15-CV-2365 (DRH)(ARL)

|

Signed 03/28/2017

Attorneys and Law Firms

Jaroslawicz & Jaros, 225 Broadway, 24th Floor, New York, NY 10007, By: David Jaroslawicz, Esq., Norman E. Frowley, Esq., Attorneys for Plaintiff.

Dopf, P.C., 440 Ninth Avenue, New York, NY 10001, By: Martin B. Adams, Esq., Attorneys for Defendant JAF Carrier, LLC, s/h/a JAF Carrier, L.L.C. d/b/a Bagir Trucking.

Wilson, Elser, Moskowitz, Edelman & Dicker LLP, 1133 Westchester Avenue, White Plains, NY 10604, By: Lindsay J. Kalick, Esq., Attorneys for Defendants C.H. Robinson Company, Inc., C.H. Robinson Transportation, Company Inc. and C.H. Robinson Worldwide, Inc.

Morris Duffy Alonso & Faley, Two Rector Street, 22d Floor, New York, NY 10006, By: Mark Healy, Esq., Attorneys for Defendant Jetro Cash and Carry Enterprises, LLC s/h/a Jetro Cash and Carry Enterprise, LLC.

 

 

MEMORANDUM & ORDER

Denis R. Hurley, United States District Judge

*1 This is an action to recover for personal injuries sustained by Plaintiff Winona Mae Palmiotti (“Plaintiff” or “Palmiotti”). Presently before the Court is a motion by the defendants challenging the existence of diversity subject matter jurisdiction and a motion by Plaintiff to amend her complaint. For the reasons set forth below, defendants’ motion is granted to the extent that this matter is remanded to the Supreme Court, Suffolk County, and Plaintiff’s motion is denied.

 

 

PROCEDURAL BACKGROUND

As commenced in state court, the complaint named as defendants JAF Carrier, LLC, s/h/a JAF Carrier, L.L.C. d/b/a Bagir Trucking (“JAF”), C.H. Robinson Company, Inc., C.H. Robinson Transportation Company Inc. and C.H. Robinson Worldwide, Inc. (collectively “Robinson Defendants”) and Jose Caranza a/k/a Jose Cruz (“Caranza”). That complaint identified the parties as follows: Plaintiff as a resident of New York; JAF as a “foreign limited liability company” organized under the laws of Virginia; and the Robinson defendants as foreign corporations organized under the laws of Minnesota (Company and Transportation) and Delaware (Worldwide). On April 27, 2015, the Robinson Defendants removed the action to this Court on the ground of diversity of citizenship.1

 

By stipulation of the parties approved by the Court, plaintiff filed an amended complaint on December 3, 2015 adding Jetro Cash and Carry Enterprise, LLC (“Jetro”) as a defendant. The amended complaint alleges that Jetro “is a domestic limited liability company, duly organized and existing under and by virtue of the laws of the State of New York.” (DE 25 at ¶ 11.)2

 

Shortly after answers to the amended complaint were filed, JAF sought leave to file a motion directed to subject matter jurisdiction and seeking dismissal of this action and its remand to state court. Similar requests by Jetro and the Robinson Defendants soon followed, as well as a request by plaintiff to file a motion to amend her complaint. Leave was granted and the following motions have been filed: (1) a motion to dismiss by JAF, in which the Robinson Defendants join; (2) a motion to dismiss and remand by Jetro; and (3) a motion to amend the complaint by plaintiff. The motions by JAF and Jetro both focus on Jetro’s citizenship.

 

 

DISCUSSION

1. Standard of Review
2. Federal Rule of Civil Procedure 12(b)(1)

“A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). “The party invoking federal jurisdiction bears the burden of proving facts to establish that jurisdiction.” Linardos v. Fortuna, 157 F.3d 945, 947 (2d Cir. 1998). “In resolving a motion to dismiss for lack of subject matter jurisdiction, the Court may consider affidavits and other materials beyond the pleadings to resolve jurisdictional questions.” Cunningham v. Bank of New York Mellon, N.A., 2015 WL 4101839, * 1 (E.D.N.Y. July 8, 2015) (citing Morrison v. Nat’l Australia Bank, Ltd., 547 F.3d 167, 170 (2d Cir. 2008)).

 

 

1. 28 U.S.C. § 1447

*2 28 U.S.C.§ 1447 provides for the procedure after a case has been removed to federal court. Subsection (c) explainns that “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C.§ 1447(c). It is the appropriate standard to apply where, as here, a complaint has been amended to add a party and it is claimed that the amendment has destroyed complete diversity thereby divesting the court of jurisdiction. Rosenfeld v. Lincoln Life Ins. Co., ––– F. Supp.3d ––––, 2017 WL 945114, *2 (E.D.N.Y. Mar. 9, 2017).

 

 

1. Principles Regarding Diversity Jurisdiction

Diversity jurisdiction exists when all plaintiffs are citizens of states diverse from those of all defendants. Pennsylvania Pub. Sch. Employees’ Ret. Sys. v. Morgan Stanley & Co., Inc., 772 F.3d 111, 117-18 (2d Cir. 2014) (citing Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 553 (2005)). The party asserting diversity jurisdiction has the burden to prove the same. Pennsylvania Pub. Sch. Employees’ Ret. Sys., 772 F.3d at 118. “[D]iversity of citizenship should be distinctly and positively averred in the pleadings, or should appear with equal distinctness in other parts of the record[.]” Leveraged Leasing Admin. Corp. v. PacificCorp Capital, Inc., 87 F.3d 44, 47 (2d Cir. 1996) (internal quotation marks omitted). “A conclusory allegation in the Complaint regarding diversity of citizenship does not extinguish the Court’s responsibility to determine, on its own review of the pleadings, whether subject matter jurisdiction exists.” Richmond v. International Bus. Machs. Corp., 919 F. Supp. 107, 108 (E.D.N.Y. 1996), aff’d, 841 F.2d 1116 (2d Cir. 1988). For the purpose of diversity jurisdiction, “a statement of the parties’ residence is insufficient to establish their citizenship.” Davis v. Cannick, 2015 WL 1954491, at *2 (E.D.N.Y. 2015); Young-Gibson v. Patel, 476 Fed.Appx. 482, 483 (2d Cir. June 12, 2012).

 

“For purposes of diversity jurisdiction, [an individual’s] citizenship depends on his domicile.” Linardos v. Fortuna, 157 F.3d 945, 948 (2d Cir. 1998).

 

A corporation is deemed to be a citizen of the state in which it is incorporated and of the state or foreign state where it has its principal place of business. 28 U.S.C. 1332(c)(1); Carter v. HealthPort Tech., LLC, 882 F.3d 47, 60 (2d Cir. 2016). “A corporation’s principal place of business under § 1332 is ‘the place where a corporation’s officers direct, control, and coordinate the corporation’s activities.’ In practice, this ‘should normally be the place where the corporation maintains its headquarters—provided that the headquarters is the actual center of direction, control, and coordination, i.e., the nerve center.’ ” OneWest Bank, N.A. v. Melina, 827 F.3d 214, 218 (2d Cir. 2016) (quoting Hertz Corp. v. Friend, 559 U.S. 77, 92–93 (2010)).

 

The citizenship of a limited liability company (“LLC”) is determined by the citizenship of each of its members. See, e.g., Bayerische Landesbank, New York Branch v. Aladdin Capital Management LLC, 692 F.3d 42, 49 (2d Cir. 2012); Handelsman v. Bedford Vill. Assocs. Ltd P’ship, 213 F.3d 48, 51–52 (2d Cir. 2000). “A complaint premised upon diversity of citizenship must allege the citizenship of natural persons who are members of a limited liability company and the place of incorporation and principal place of business of any corporate entities who are members of the limited liability company.” New Millennium Capital Partners, III, LLC v. Juniper Grp. Inc., 2010 WL 1257325, at *1 (S.D.N.Y. Mar. 26, 2010), (citing Handelsman, 213 F.3d at 51–52); Bishop v. Toys “R” Us-NY LLC, 414 F. Supp.2d 385, 389 n.1 (S.D.N.Y. 2006), aff’d, 385 Fed.Appx. 38 (2d Cir. 2010). If the member or members of a limited liability company are themselves a limited liability company, citizenship is determined by an upstream analysis of its members and structure. Bayerische, 692 F.3d at 49.

 

 

1. Diversity Jurisdiction and the Amended Complaint

*3 The first issue to be addressed is whether this Court has subject matter based on the current pleading, viz. the amended complaint. The allegations in that pleading as to the named parties are as follows:

1. At all times hereinafter mentioned, plaintiff is a resident of the State of New York, County of Suffolk.
2. At all times hereinafter mentioned, defendant JAF Carriers L.L.C. (“JAF”) is a foreign limited liability company, duly organized and existing under and by virtue of the laws of the State of Virginia.
3. At all times hereinafter mentioned, defendant JAF is a trucking company doing business in the State of New York
4. At all times hereinafter mentioned, upon information and belief, defendant JAF does business under Bagir Trucking.
5. At all times hereinafter mentioned, defendant C.H. Robinson Company Inc. is a foreign corporation, duly organized and existing under and by virtue of the laws of the State of Minnesota, authorized to do business and doing business in the State of New York.
6. At all times hereinafter mentioned, defendant C.H. Robinson Transportation Company is a foreign corporation, duly organized and existing under and by virtue of the laws of the State of Minnesota, authorized to do business and doing business in the State of New York.
7. At all times hereinafter mentioned, defendant C.H. Robinson Worldwide, Inc. is a foreign corporation, duly organized and existing under and by virtue of the laws of the State of Delaware, doing business in the State of New York.
8. At all times hereinafter mentioned, the C.H. Robinson defendants act as truck brokers.
9. At all times hereinafter mentioned, defendant Jose Caranza (“Caranza”) is also known as Jose Cruz was acting as an agent, servant, and/ or employee of defendant JAF in further of its business.
10. At all times hereinafter mentioned, defendant Caranza was acting as an agent, servant, and/ or employee of the C.H. Robinson defendants in furtherance of their business.
11. At all times hereinafter mentioned, defendant Jetro Cash and Carry Enterprise, LLC (“Jetro”) is a domestic limited liability company, duly organized and existing under and by virtue of the laws of the State of New York.
12. At all times hereinafter mentioned, defendant Jetro owned the premises known as 1349 132nd Street in College Point, New York.
13. At all times hereinafter mentioned, defendant Jetro operated the aforementioned premises.
14. At all times hereinafter mentioned, defendant Jetro maintained the aforementioned premises.
15. At all times hereinafter mentioned, defendant Jetro managed the aforementioned premises

Amended Complaint (DE 25) ¶¶ 1-15.

 

Even a cursory review of the above allegations reveals that they are facially insufficient to establish diversity subject matter jurisdiction. First, that plaintiff is a “resident” of New York does not constitute a sufficient allegation of her state of domicile. Avant Capital Partners, LLC v. W108 Dev. LLC, 2016 WL 366056 (S.D.N.Y. June 30, 2016); Davis, 2015 WL 1954491, at *2; Young-Gibson, 476 Fed.Appx. at 483. Second, lacking are allegations as to the principal place of business of all three of the Robinson defendants. See Carter, 882 F.3d at 60. Third, there is no allegation as to the domicile of Caranza. See Leveraged Leasing, 87 F.3d 44, 47 (“[D]iversity of citizenship should be distinctly and positively averred in the pleadings, or should appear with equal distinctness in other parts of the record [.]”). Lastly, as both JAF and Jetro are “LLC’s” the allegations with respect to where they are “duly organized and existing under” does not state their citizenship. New Millennium Capital Partners, 2010 WL 1257325, at *1.

 

*4 As the amended complaint was already filed, the above deficiencies require remand, as opposed to dismissal, see Rosenfeld, 2017 WL 945114, at *2, unless subject matter exists under the proposed (second) amended complaint. Accordingly, the Court now turns to that pleading.

 

 

III. Diversity Jurisdiction and the Proposed (Second) Amended Complaint.

The Proposed (Second) Amended Complaint (“PAC”) contains the following allegations regarding the parties:

1. At all times hereinafter mentioned, plaintiff is a resident of the State of New York, County of Suffolk.
2. At all times hereinafter mentioned, defendant JAF Carriers L.L.C. (“JAF”) is a foreign limited liability company, duly organized and existing under and by virtue of the laws of the State of Virginia.
3. At all times hereinafter mentioned, defendant JAF is a trucking company doing business in the State of New York.
4. At all times hereinafter mentioned, upon information and belief defendant JAF does business under Bagir Trucking.
5. At all times hereinafter mentioned, defendant C.H. Robinson Company Inc. is a foreign corporation, duly organized and existing under and by virtue of the laws of the State of Minnesota, authorized to do business and doing business in the State of New York.
6. At all times hereinafter mentioned, defendant C.H. Robinson Transportation Company is a foreign corporation, duly organized and existing under and by virtue of the laws of the State of Minnesota, authorized to do business and doing business in the State of New York.
7. At all times hereinafter mentioned, defendant C.H. Robinson Worldwide, Inc. is a foreign corporation, duly organized and existing under and by virtue of the laws of the State of Delaware, doing business in the State of New York.
8. At all times hereinafter mentioned, the C.H. Robinson defendants act as truck brokers.
9. At all times hereinafter mentioned, defendant Jose Caranza (“Caranza”) is also known as Jose Cruz was acting as an agent, servant, and/ or employee of defendant JAF in further of its business.
10. At all times hereinafter mentioned, defendant Caranza was acting as an agent, servant, and/ or employee of the C.H. Robinson defendants in furtherance of their business.
11. At all times hereinafter mentioned, defendant Jetro Cash and Carry Enterprise, LLC (“Jetro”) is a foreign corporation organized under the laws of Delaware with a principal place of business outside of New York within the meaning of 28 USC Section 1332.

Ex. U to Frowley Aff. (DE 65-21) ¶¶ 1-11.

 

A comparison of the allegations regarding the parties contained in the amended complaint to the allegations recited above readily reveals that the only difference relates to Jetro. Thus, the deficiencies noted with respect to Plaintiff, the Robinson Defendants, Caranza and JAF remain and thus remand remains appropriate.

 

Nonetheless, given that based on the allegations in the notice of removal3 plaintiff may well be able to cure these deficiencies, the Court will address the issue raised by the parties—the citizenship of Jetro for diversity purposes.

 

*5 Jetro maintains that diversity does not exist because it, like Plaintiff, is a citizen of New York. In support of its position, it submits the affidavit of Brian E. Emmert, an officer of Jetro and of JRD Unico, Inc. (“JRD Unico”). Emmert Aff. (DE 61-7) ¶ 1. According to that affidavit, (1) the sole member of Jetro is Jetro Holdings, LLC (“ Jetro Holdings”), a Delaware limited liability company; (2) the sole member of Jetro Holdings is JRD Holdings, LLC (“JRD Holdings”), another limited liability company; (3) the sole member of JRD Holdings is JRD Unico, which is a Delaware corporation; and (4) the principal place of business of Jetro “and all of the aforementioned entities is located in the State of New York at 15-24 132nd Street in College Point.” Id. at ¶ 2. It is further averred: “The decision making and coordination for all of the aforementioned Jetro entities takes place in the State of New York at the College Point location…. JRD Unico, Inc.’s officers direct, control and coordinate the corporation’s activities solely from the College Point headquarters at 15-24 132nd Street. The College Point, New York headquarters is the nerve center of JRD Unico, Inc.” Id. at ¶¶ 2,4.

 

Plaintiff’s response to the assertion that New York is the principal place of business of JRD Unico and therefore diversity jurisdiction does not exist is best exemplified by the following excerpt from her reply brief:

Although it has taken some “digging” to get to the bottom of the “nerve center” issue, counsel for Jetro’s suggestion that JRD Unico, Inc. is at the “top of the corporate structure” has led us to discover we were incorrect in some of our allegations on this motion but correct in the more essential ones. JRD Unico Inc. is not at the top of the corporate structure, as defense counsel for Jetro alleges. It is evidently just one of about 28 different companies, ten of which are active, including Restaurant Depot, LLC, Restaurant Depot Enterprises, LLC and Jetro Management and Development Corp. all of which are overseen by one Stanley Fleishman, as CEO (Exhibit “A”).

But all of these entities are either owned in whole or significant part and are controlled by a South African holding company called Kirsh Holdings (Exhibit “B”). Kirsh Holdings is owned and controlled by a South African billionaire named Nathan “Natie” Kirsh who at one time sold 80 percent of his business to the Swiss supermarket conglomerate Metro Holding, now called Grospart. But that company later sold its share back to him. So we were incorrect in our allegation that at the time of this occurrence the defendant Jetro was owned by Grospart. But, most respectfully, we were not incorrect in our allegation that Jetro is part of a large group of corporations whose nerve center is in a foreign country. The foreign country in this case is South Africa where Kirsh Holdings is located.

… Plaintiff is not claiming that diversity is based on the citizenship of Jetro’s corporate parent. Instead, it is plaintiff’s assertion based on the reality of the circumstances that Jetro’s “nerve center” for jurisdictional purposes is outside of New York. The fact that the entire Jetro organization is owned and inferentially controlled by a holding corporation overseas is substantial proof that Jetro’ s nerve center is not in Queens, New York, but in a foreign jurisdiction.

Frowley Reply Aff. (DE 66) at ¶¶ 4-6.

 

Putting aside that Plaintiff’s assertions regarding these other companies and their relationship to Jetro are supported by internet articles, the veracity of which cannot be verified, the citizenship of the shareholder of JRD Unico or where the shareholder is located is irrelevant to the citizenship of Jetro. The upstream analysis mandated by Bayerische does not go on ad infinitum. As the Circuit’s discussion makes clear, the analysis stops when there are no more entities whose citizenship is dependent on another entity. See 692 F.3d at 49 (“Defendant Aladdin is a limited liability company that takes the citizenship of each of its members. Defendant Aladdin has one member: ACH. ACH, [an LLC,] in turn, has ten members: four United States citizens who are domiciled in states of the United States and are thus citizens of those states; four companies with domestic places of incorporation and principal places of business; one limited partnership with its principal place of business and all three of its U.S.-citizen partners domiciled in Connecticut; and a company incorporated in Delaware with its principal place of business in Tokyo, Japan.”) (internal citations omitted).

 

*6 Nor do the materials submitted by Plaintiff support its assertion that JRD Unico’s principal place of business is “outside New York.” Jetro has properly supported its position that JRD Unico’s principal place of business is in New York. The evidence as to the locale, activities, and other corporate holdings of JRD Unico’s shareholder, in addition to being inadmissible hearsay, is not relevant in this case to JRD Unico’s principal place of business and ergo Jetro’s citizenship for diversity purposes. See OneWest Bank, N.A. v. Melina, 2015 WL 5098635, *2 (E.D.N.Y. Aug. 31, 2015) (“[T]he citizenship of any actual or proposed parent of OneWest does not control OneWest’s citizenship for purposes of diversity jurisdiction.”) (citing Frisone v. Pepsico, Inc., 369 F. Supp.2d 464, 472 (S.D.N.Y. 2005) (“As a general rule, a separately incorporated entity is … considered to have its own principal place of business.”) (internal quotation marks omitted); Charles Alan Wright et al., 13F Federal Practice & Procedure § 3625 (3d ed.) (“The general rule applied by the federal courts in numerous cases in this situation is that a subsidiary corporation has its own principal place of business for purposes of diversity of citizenship jurisdiction, unless it is merely an ‘alter ego’ or agent of the parent corporation.”)), aff’d, 827 F.3d 214 (2016).

 

 

CONCLUSION

For the reasons set forth above, the motions of defendants are granted to the extent that this case is remanded to the Supreme Court, Suffolk Court. Plaintiff’s motion to amend her complaint is denied.

 

SO ORDERED.

 

All Citations

Slip Copy, 2017 WL 1166364

 

 

Footnotes

1

While the state court complaint did not allege the citizenship of Caranza, the notice of removal identified him as a citizen of Virginia. After the action was removed, Plaintiff dismissed her claims against Caranza.

2

The Court notes that Jetro’s answer denies the allegation that it was organized under the laws of New York.

3

According to the notice of removal, Plaintiff is a citizen of New York, the principle places of business of all the Robinson Defendants is Minnesota and Caranza is a citizen of Virginia. [DE 1.]