Opinion
No. 03 C 1266
February 21, 2003
MEMORANDUM ORDER
IFC Credit Corporation ("IFC") has brought this breach-of-guaranties action against two individual defendants and Black AG, L.L.C. ("Black") under the claimed auspices of diversity jurisdiction. Because the Complaint contains obvious jurisdictional flaws in that respect, this memorandum order is being issued sua sponte.
To begin with, both individual defendants have been identified as to their states of residence rather than of citizenship (Complaint ¶¶ 2 and 3), even though the latter is by definition the relevant consideration for diversity purposes. On that score Held v. Held, 137 F.3d 998, 1000 (7th Cir. 1998), quoting Guaranty Nat'l Title Co. v. J.E.G. Assocs., 101 F.3d 57, 59 (7th Cir. 1996) teaches:
Of course, allegations of residence are insufficient to establish diversity jurisdiction. It is well-settled that "[w]hen the parties allege residence but not citizenship, the court must dismiss the suit."
As for Black, Complaint ¶ 4 identifies only some facts that are wholly irrelevant for diversity purposes:
BLACK AG is a Kentucky limited liability company that maintains its principal place of business at 3677 Robert C. Byrd Drive, Beckley, West Virginia 25801.
IFC's counsel ought to know better, for it has been clear at least ever since Cosgrove v. Bartolotta, 150 F.3d 729, 731 (7th Cir. 1998) that the relevant citizenship of a limited liability company, like that of any other unincorporated entity or association, is that of all of its members — teaching that has been repeated by our Court of Appeals (and of course reiterated by this Court) a number of times since then.
Despite Held, no dismissal will be ordered now. Instead IFC's counsel are ordered to file an appropriate amendment to Complaint ¶¶ 2, 3 and 4 (not a self-contained Amended Complaint with attached exhibits) in this Courts chambers on or before March 5, 2003. Absent such a timely filing, or if IFC's filing fails to disclose the requisite diversity of citizenship, this Court will be constrained to dismiss this action for lack of subject matter jurisdiction.
Because this memorandum order is limited to jurisdictional considerations, which must be addressed at the outset, no ruling is included here as to what seems to be a problematic effort at recovery that may include unenforceable penalty components ( see Complaint ¶¶ 8, 11, 12, 15, 18 and 19).