is the result of a complaint that was filed in the southern district federal court up in palm beach which has what i would say a facially defective complaint alleged diversity and there's a plethora of cases in this circuit and this seems supreme court that the finds the criteria and who has the burden of proof of setting forth diversity the original complaint add the following as a result as are referred to the pardons it's said plaintive gone in is an ohio limited liability company with his principal place of business in columbus ohio all members are owners of god are residents citizens or residents of the state of ohio all the case would deals with the issue of citizenship and doma sile as opposed to residency and being able to invoke the jurisdiction of the court as you well know this is a did novo proceeding so you have a right to look at all of these pleadings right from the beginning it then goes on and says that the defendant p p b c which was the former this is been up here before and as i understand it this court remanded for a factual determination by the district court and jurisdictional discovery was taken and the district court made fact findings about diversity isn't that right that is your honor but it's our position that the don't need to be talking about what those wanted to make sure but this was the first judicial body to recognize the deep facts in the pleading of diversity and that's why we sent it back exactly and your honor when it did go back the factual determinations we feel that were made by judge middlebrook were in error his legal standard that he said forth and his order of every man is the legal standard in this jurisdiction and the supreme court  the problem is that he in his own determination refused to allow the admission of evidence that proved in fact that mr mark scott who has not  been investigated his has not been determined whether or not he's a citizen of the state of florida are free stateless there has been no investigation there has been no proof otherwise however the proof did show that mr scott was one of the members of the l l c the nonentities we have a fair amount of evidence that he wasn't right that he wasn't writes well that's where we disagree are on or there's a fair amount of evidence that own transcript testimony says he was an investor the other transcript testimony of mr room audio who is the plaintiff in the pallies said mr scott is in owner but it we need to review the factual determination by the district court for clear air and if so if there's evidence to support its findings don't we have to affirm them i disagree or out of because the evidence that you're talking about is not definitive he in his mind dismissed the evidence of the kate ones and the tax returns which specifically showed is scott was a member the district court decided the two thousand and twelve return which included a k one that listed scott's capital as zero per right but your honor you need to know the two important dates here the two important dates are july twenty sixth two thousand and twelve and october thirty first and events of the first of two thousand and twelve when this particular complain was filed the second amended complaint mr scott was a member at six percent of the entity the non corporation of palm steakhouse l l c that is something that the appellee totally ignored they failed to investigate it he testified they said well we couldn't find or we didn't have an address on them and judge middlebrooks said that we were deficient in trying to help and provide mr friess justified that scott wasn't a member and that the two thousand and thirteen return listed scott's membership share as six point six percent in error your honor what took place he testified of that he testified to it but prior to that your honor he said that when mr scott was originally in making his investment he was an equity investor it turned into a loan she has me alone first then he became an equity investor he was an equity investor all the way up to two thousand and twelve when the main asset of the property was sold at that point in time he wanted his money back so they deemed it to be a loan that was also explained in the letter affidavit that judge middlebrook refused to allow into evidence he said it was untimely well your honor diversity citizenship and jurisdiction can be objected to and brought up at any stage of the litigation and we know that i mean it's civil procedure want to one that's true but jurisdictional facts facts that are found by the district court where there's evidence even evidence is in conflict we review the findings of fact for clear air right i'm trying to explain to the clear or to the court was that he did not look at the k ones because he refused to allow them into evidence saying they were untimely well now we separately filed the case this is a court this proceedings or do novo so you can look at the k ones and see that mr scott not receive a payout until november of two thousand and twelve even if he had a zero capital account which in two thousand and thirteen it showed that doesn't mean he wasn't a member that doesn't mean that they don't have to and find out whether or not there's a violation of the criteria required in order to have diversity up there was a c p a who testified that zero percent capital meant that he wasn't a member i'm not familiar with that your honor but all i'm saying that was in two thousand and thirteen after the whole transaction was already over at the time the most important thing for what i read intra travie gilleo which your honor was involved in on that panel is that it's at the time the cases filed who are the members mr scott in july of two thousand and twelve still had an interest in equity interest in palm steakhouse l l c now all the members in palm steakhouse l l c or mr rodham in an individual john peru's who they never even dealt with was a two percent profit sharing individual and the case law specifically says that they have to investigate all the different layers of the non corporate entities at the two thousand and twelve and two thousand and thirteen returns failed to list caruso as a member they do your honor but still as a two percent owner they didn't rid choir into that that's a layer that involves a profit sharing and should have looked into it but the main individual was mark scott he testified gave his address i thought the testimony at trial he gave his address when asked what it well it's however counsel failed to inquire any further he was still believing based upon the allegations set forth in his complaint that i began to read to the court that residency was the issue of diversity of citizenship which is one hundred percent wrong we know that however he apparently didn't know that at the time of trial otherwise he could have asked mr scott what is your citizenship where you doma sile he failed to follow that up and that's why this court when you saw it i assume referred back to the limited purpose to determine whether there was the versity of citizenship so that the judge would know that the plaintiff any of the plaintiffs that ended the fence to not reside are were not citizens of the same state that did not take place citizenship i know better i didn't fall off the turnip truck yesterday but i was mistaken the court threw back the jurisdictional question now by way about we know about that we know that jurisdictional discovery was taken we know that there's been a hearing we know that there's been evidence about this now it to district court or in in making its factual data it clearly did not commit any clear error there had agreed that's the standard yes there had never been an issue raised prior to the jurisdictional question about these two alleged members being members in fact the appellant's moved to dismiss my complaints claiming lack of subject matter jurisdiction two times claiming that there was no subject matter jurisdiction because they were all from florida and we were from florida because we allegedly had a principal place of business there that's not the standard it's where the citizen the members are citizens and my client's member is from ohio so but they always alleged in their motions smith that they were from florida then they filed firmat of relief they filed counterclaims where they allege there was complete diversity in their counterclaims so they seized on this opportunity of this mistake and for the first time literally tried to concoct this argument that there were two new members that had never been mentioned before so we did the jurisdictional discovery i deposed all the members including opposing counsel as part of jurisdictional discovery and there is no dispute in the record from that jurisdictional discovery that there's complete diversity we had the federal tax returns and we agree that the relevant time periods two thousand and twelve all the k ones showed that these two gentlemen were not members and i went to the effort of getting an expert witness walt whose affidavits in the record said this is proof that these are the members and it didn't include these two gentlemen so either they were being untruthful to the federal government or to the court and and then finally deposed or she's the managing member of the appellant she testified clearly that these two gentlemen were not the members and all of the witnesses other than these two gentlemen testified they were florida citizens my client testified in the record he's an ohio citizen which creates complete diversity so respectfully we would ask the court to affirm on that issue ok the only thing that's been raised this morning  diversity jurisdiction so i don't know whether you want to address anything else if you did then that of course gives your opponent the opportunity to say then is in response to you'll never have a chance to respond to but if you don't say anything about the other issues then he won't be able to bring them up and that's your choice my colleague is always so subtle and has  dean it it seems to me the district court was entitled to credit the evidence that mr elder was referring to and to make findings that in fact these two individuals were not members and that we clearly considered that well then if they clearly consider that there's no way he could have come up with any other decision your honor when you're a six year old has capital is it at zero percent that's in two thousand and thirteen the issue is when the case was filed the case law deals with a one for two thousand and twelve showed it at zero percent your honor because he got paid off in two thousand and twelve that was in november and i can show it to you from the record it's  five fifty six in the record shows that the payoffs that were made by mr rotter meant they got paid off mr scott got paid three hundred thousand dollars the return of his initial loan to the company which was then made into equity that's why it showed he had six percent that was made in october of two thousand and twelve the case was filed on july twenty sixth two thousand and twelve at the time that this case was filed it did not comply with the requirements of listing all of the non corporate entities of which mr scott was one of them he still was an equity holder in palm steakhouse the appellant until they got paid off in the vendor then the tax returns were filed for two thousand and twelve but april of the following year they got they got filed so the question here your honor is the case law is clear the that scott was not a member he if you look at the whole thing your honor the whole deposition she said she was confused i objected then she said she wasn't sure why it was a pretty simple question i think it was a cause for a yes or no answer did she testify that scott was not a member it's said that you know her but with an explanation that took place after that statement and the court has to look at the whole deposition to make that determination it was taken out of context ok the key here and where would i go to see clearly in this record and and contradicted fact that in fact he was a member it seems to me if she testified to that you may say taken out of context that it sounds to me like evidence that the district court could rely on  forth the fact of who the members were and the tax returns show who the members were what the court is doing is looking at the tax return that was filed in april for the year before the year before mr scott got paid off he was no longer there his capital account was zero and even if you have a capital accounted zero you have sweat equity you have a lot of different things that are taken into consideration to determine whether or not somebody still has an interest in a corporate or an l l c but the non corporate entities were very rodham in scott as mark scott and the two trust that no leader trust and the p b g c trust now he in his complaint he sues on behalf of p g c and says that was the former name for palm steakhouse however your honor the tax report returns or clear up into that point and when the date of the filing of the complaint which is the measure of whether or not there was diversity he was still a member of palm stakeouts formally known as b b g c thank you mr goldstein we have your case take the second