Boyer v. Johnson & Johnson ( 2019 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Kimberly Boyer, No. CV-19-05232-PHX-DWL 10 Plaintiff, ORDER 11 v. 12 Johnson & Johnson, et al., 13 Defendants. 14 15 The Court has an independent obligation to determine whether it has subject-matter 16 jurisdiction. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999). Pursuant to 17 Rule 12(h)(3) of the Federal Rules of Civil Procedure, “[i]f the court determines at any 18 time that it lacks subject-matter jurisdiction, the court must dismiss the action.” 19 Plaintiff alleges that “Defendant Synthes USA Products, LLC is a Delaware 20 corporation with its principal place of business at 1302 Wrights Lane East, West Chester, 21 Pennsylvania 19380,” such that it “is a resident and citizen of Delaware and Pennsylvania.” 22 (Doc. 1 ¶ 5.) 23 These allegations are confusing—it seems unlikely that a company called “Synthes 24 USA Products, LLC” is actually a corporation, not an LLC. This distinction is important 25 because a corporation, whether incorporated in a state of the United States or in a foreign 26 country, is “deemed a citizen of its place of incorporation and the location of its principal 27 place of business.” Nike, Inc. v. Comercial Iberica de Exclusivas Deportivas, S.A., 20 F.3d 28 987, 990 (9th Cir. 1994). An LLC, on the other hand, “is a citizen of every state of which 1 its owners/members are citizens.” Johnson v. Columbia Properties Anchorage, LP, 437 2 F.3d 894, 899 (9th Cir. 2006). Thus, to properly establish diversity jurisdiction “with 3 respect to a limited liability company, the citizenship of all of the members must be pled.” 4 NewGen, LLC v. Safe Cig, LLC, 840 F.3d 606, 611 (9th Cir. 2016). 5 Plaintiff further alleges that “Synthes USA Products, LLC is a wholly-owned 6 subsidiary of Medical Device Business Services, Inc.” (Doc. 1 ¶ 5.) Thus, if this entity is 7 actually an LLC (and not a corporation), this would suggest its citizenship is the same as 8 the citizenship of Medical Device Business Services, Inc. See, e.g., 3123 SMB LLC v. 9 Horn, 880 F.3d 461, 463 (9th Cir. 2018) (determining citizenship of LLC that is a wholly- 10 owned subsidiary of a corporation by analyzing the citizenship of the corporation). 11 Plaintiff alleges that Medical Device Business Services, Inc. is an Indiana corporation with 12 its principal place of business in Indiana, such that it is a citizen of Indiana. (Id. ¶ 4.) Thus, 13 it seems to follow that Synthes USA Products, LLC is also a citizen of Indiana, and only 14 Indiana. 15 The seemingly contradictory allegations in the Complaint do not clearly establish 16 the citizenship of Synthes USA Products, LLC. Plaintiff must amend her Complaint to 17 correct this deficiency.1 See NewGen, 840 F.3d at 612 (“Courts may permit parties to 18 amend defective allegations of jurisdiction at any stage in the proceedings.”). Plaintiff may 19 allege an LLC members’ citizenship on information and belief if the information is not 20 reasonably ascertainable, Carolina Cas. Ins. Co. v. Team Equipment, Inc., 741 F.3d 1082, 21 1087 (9th Cir. 2014), although in this case, it appears that the Synthes USA Products, LLC, 22 to the extent it’s actually an LLC and not a corporation, has only one member whose 23 citizenship is already known to Plaintiff. 24 Accordingly, 25 IT IS ORDERED that by September 30, 2019, Plaintiff shall file an amended 26 complaint properly alleging the citizenship of Synthes USA Products, LLC. 27 1 This amended complaint pursuant to court order will not affect Plaintiff’s right 28 under Rule 15(a)(1) to later amend once as a matter of course, if she chooses to do so. See, e.g., Ramirez v. Cty. of San Bernardino, 806 F.3d 1002, 1006-09 (9th Cir. 2015) 1 IT IS FURTHER ORDERED that if Plaintiff fails to timely file an amended complaint, the Clerk of the Court shall dismiss this case, without prejudice, for lack of 3 || subject matter jurisdiction. 4 Dated this 23rd day of September, 2019. 5 4 - Dominic W. Lanza 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-