Opinion
No. 04 Civ. 9622 (CSH)(KNF).
July 27, 2005
REPORT AND RECOMMENDATION
TO THE HONORABLE CHARLES S. HAIGHT, UNITED STATES DISTRICT JUDGE
Plaintiff Thunder Bay Capital Management, L.P. ("Thunder Bay") commenced this action in state court, alleging breach of contract and other state-law claims against defendants Brian Piscopo ("Piscopo") and Christopher Donohue ("Donohue"). Thereafter, Donohue removed the action to this court, pursuant to 28 U.S.C. § 1441(a), on the ground that the action is within the subject matter jurisdiction of this court because the parties are diverse. According to the complaint and the notice of removal, the defendants are both citizens of New Jersey, and the plaintiff is a limited partnership whose principal place of business is in New York.
"If 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) ("§ 1447(c)"). Diversity jurisdiction in an action by or against an artificial entity, other than a corporation, depends on the citizenship of all of the members of the entity. Carden v. Arkoma Associates, 494 U.S. 185, 195, 110 S. Ct. 1015, 1021 (1990). In Carden, the Supeme Court held that, in order to determine whether a limited partnership is diverse from the other parties to an action, a court must consider the citizenships of all of the limited partnership's general and limited partners. Id.
The notice of removal and the complaint in this action do not contain any allegations concerning the citizenship(s) of the general and limited partners of Thunder Bay. As there is no basis in the record upon which to conclude that the parties to the action are diverse, it appears that this court lacks subject matter jurisdiction over the action. Therefore, the action should be remanded to state court, pursuant to § 1447(c).
RECOMMENDATION
For the reasons set forth above, I recommend that the action be remanded to state court.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Charles S. Haight, 500 Pearl Street, Room 1940, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Haight, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York, 10007. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993);Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).