United States Court of Appeals

For the First Circuit

No. 22-1389

BRT MANAGEMENT LLC,

Plaintiff, Appellant,

v.

MALDEN STORAGE LLC; PLAIN AVENUE STORAGE LLC,

Defendants/Third-Party Plaintiffs, Appellees,

BRIAN WALLACE,

Third-Party Defendant, Appellant,

BANNER DRIVE STORAGE LLC,

Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. F. Dennis Saylor, IV, U.S. District Judge]

Before

Kayatta, Lynch, and Montecalvo,

Circuit Judges.

John S. Davagian, II and Davagian Grillo & Semple LLP on brief 

for appellant.

Alec S. Pine, John H. Brazilian, and Butters Brazilian LLP on 

brief for appellees.
May 22, 2023
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KAYATTA, Circuit Judge. This lawsuit serves as a 

reminder that subject matter jurisdiction cannot be taken for 

granted and that special attention need be paid when attempting to 

invoke diversity jurisdiction if a party is not a natural person

or a corporation. In this particular case, after six years of 

litigation culminating in a trial and an eight-figure judgment 

against the plaintiff and third-party defendant, and after three 

separate orders warning counsel that jurisdiction was in question, 

the parties have been unable to establish that no defendant shares 

state citizenship with any plaintiff. We therefore vacate the 

judgment and remand to the district court so that any party --

presumably the defendants at this point -- will have one last 

chance to demonstrate that there is complete diversity.

I.

Unable to resolve a contract dispute, plaintiff BRT 

Management LLC ("BRT") filed this lawsuit in federal district 

court. The details of the dispute hold no relevance to our 

analysis other than to say that they present no federal question 

within the meaning of 28 U.S.C. § 1331.1 Nor do they present any 

possible basis for federal jurisdiction other than diversity 

jurisdiction under 28 U.S.C. § 1332, which BRT accordingly sought 

to invoke. Defendants asserted counterclaims that similarly 

1 Although BRT moved to add a federal claim to the suit, its 

motion was denied. 
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present no basis for federal court jurisdiction other than 

diversity. 

As to the citizenship of the parties, BRT's complaint

alleged only that "there is complete diversity between the parties"

because BRT was a Massachusetts limited liability company (LLC)

with a usual place of business in Massachusetts and defendants 

Malden Storage LLC ("Malden"), Plain Avenue Storage LLC ("Plain"), 

and Banner Drive Storage LLC ("Banner") were each Delaware LLCs

with usual places of business in Illinois.2 Defendants replied in 

relevant part only by alleging substantially the same facts, i.e.,

that Malden and Plain were both Delaware LLCs with principal places 

of business in Northbrook, Illinois.3 These allegations were 

plainly insufficient because, as a matter of black letter law,

"[t]he citizenship of an unincorporated entity . . . is determined 

by the citizenship of all of its members." Pramco, LLC ex rel.

CFSC Consortium, LLC v. San Juan Bay Marina, Inc., 435 F.3d 51, 

54–55 (1st Cir. 2006) (applying this rule to an LLC); see also

D.B. Zwirn Special Opportunities Fund, L.P. v. Mehrota, 661 F.3d 

124, 125 (1st Cir. 2011) (per curiam). But neither plaintiff nor 

2 BRT also alleged that Malden was registered to do business 

in Massachusetts and that Plain was registered to do business in 

New York.

3 Defendants also alleged that Banner was not a proper party 

to the suit. Banner initially moved to dismiss the claims against 

it for lack of both personal jurisdiction and subject matter 

jurisdiction, although it made no argument about diversity.
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defendants had yet provided any information about their members' 

citizenship. 

Noticing this deficiency in the pleadings, the district 

court ordered plaintiff to show cause why the action should not be 

dismissed for lack of subject matter jurisdiction. The order 

pointed out that BRT's complaint failed to "allege that the 

citizenship of every member of BRT Management LLC is diverse from 

the citizenship of every member of Plain Avenue Storage, LLC, 

Malden Storage, LLC, and Banner Drive Storage, LLC." BRT responded 

by alleging that its sole member was a natural person who was a 

resident of Massachusetts, that the sole member of both Malden and 

Plain was C Banner Storage LLC ("C Banner"), a "Delaware LLC," and 

that the sole member of Banner was Banner Storage Holding LLC, 

"also a Delaware LLC." Although the members of all defendants 

were also LLCs, BRT did not allege the citizenship of any members 

of those LLCs. 

The district court then issued a second order to show 

cause, pointing out that BRT's supplemental allegations were still

insufficient because they failed to identify the citizenship of 

the members of the LLCs that were members of Malden, Plain, and 

Banner. Because LLCs take the citizenship of all of their members, 

without the members' citizenships BRT had "failed to properly 

allege diversity jurisdiction." Given a second chance, BRT 

responded that after diligent investigation it was unable to 
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identify the citizenship of those members, and requested limited 

jurisdictional discovery to do so. The district court granted 

BRT's request. 

Following this limited discovery, the parties filed a 

"stipulation regarding diversity jurisdiction" purporting to 

"stipulate that there exists complete diversity of citizenship" 

between plaintiff, defendants, and third-party defendant Brian 

Wallace (the sole member of BRT). The stipulation also detailed 

several facts, including the states of organization and principal 

places of business for Malden and Plain; the sole member of both 

of those entities, C Banner Storage LLC; and C Banner's sole 

member, B-Dev Manager LLC.4 The stipulation did not identify the 

citizenship of the members of B-Dev Manager LLC, which was 

necessary to determine the citizenship of C Banner and, 

accordingly, defendants Malden and Plain. The stipulation further 

stated that there were "more than eighty members of Banner Drive 

Storage, LLC, including various individuals, LLCs, and trusts,"5

and that at least one investor in Banner was a Massachusetts 

resident. Both parties accordingly agreed to dismiss Banner from 

the action so that diversity would not be destroyed. 

4 Defendants later clarified on appeal that one of these 

assertions was materially incorrect.

5 This appears to conflict with BRT's earlier allegation that 

Banner was a sole member LLC but that conflict does not appear to 

be relevant for our purposes.
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The district court held a conference with both parties, 

and dismissed Banner as requested. See 5 Charles Alan Wright & 

Arthur R. Miller, Federal Practice and Procedure § 1208 (4th ed. 

2023) (failure to allege complete diversity "typically may be cured 

by amending the pleading"); see also Carolina Cas. Ins. Co. v. 

Team Equip., Inc., 741 F.3d 1082, 1088 (9th Cir. 2014) (noting in 

reversing dismissal based on lack of subject matter jurisdiction

that courts need not dismiss a complaint where the defect can be 

cured by amendment, and that jurisdictional discovery may be

appropriate). The action continued, presumably without anyone 

noticing the lurking lacuna in the parties' proof of diversity. 

The lawsuit eventually led to a nine-day bench trial in 

2021. Ultimately, the district court granted judgment for 

defendants and awarded them over ten million dollars on their 

counterclaims, including attorneys' fees. BRT timely appealed. 

Once the parties had filed their briefs on appeal, we 

issued an order yet again identifying problems with subject matter 

jurisdiction. Like the district court, we pointed out that "[a] 

limited liability company is deemed to be a citizen of every state 

of which any of its members is a citizen." And just as the district 

court had in its second order, we noted that if an LLC's member 

"is itself an unincorporated entity, then the citizenship of each 

of the entity's members or partners must be disclosed" as well. 

We concluded that the record as it existed at that time was not 
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sufficient to demonstrate subject matter jurisdiction, and ordered 

the parties to file affidavits of jurisdictional facts. 

BRT responded to our order by alleging, as it had below, 

that as of the relevant date6 it had only one member, a natural 

person who was a resident of Massachusetts. Defendants (who by 

this point would seem to have had the greatest interest in 

demonstrating jurisdiction) responded merely by asserting the same 

facts set out in the stipulation in the district court, i.e., the 

principal places of business and states of organization of their 

members, and the identities of some (but not all) of their members' 

members. 

BRT apparently recognized that it no longer had any 

interest in the jurisdictional viability of this litigation. Along 

with its sole member and third-party defendant Brian Wallace, BRT

moved to remand the case to the district court for additional 

jurisdictional discovery. It pointed out a number of defects with 

defendants' appellate filing, most notably that to identify the 

citizenship of the members of B-Dev Manager LLC (the sole member 

of C Banner, which was the sole member of both Malden and Plain), 

the affidavit alleged only that B-Dev Manager's sole member was 

6 Both parties agree that for purposes of establishing 

subject matter jurisdiction, the relevant citizenship is the 

parties' (and their members') citizenship on January 3, 2017, when 

the district court complaint was initially filed. See Bearbones, 

Inc. v. Peerless Indem. Ins. Co., 936 F.3d 12, 14 (1st Cir. 2019). 
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yet another LLC "with no members who are citizens of 

Massachusetts." As BRT pointed out, a party "cannot establish 

jurisdiction in the negative." See D.B. Zwirn, 661 F.3d at 125–

26. Based on this and other deficiencies, BRT argued that 

defendants' filing failed to comply with our order, which was 

addressed to both parties and required them to file affidavits of 

jurisdictional facts "sufficient to show their citizenship,"

including the members of any entities that were themselves 

unincorporated associations. 

In response to BRT's motion, Malden and Plain filed under 

seal yet another affidavit of jurisdictional facts. This affidavit 

corrects an incorrect and material assertion in defendants'

original jurisdictional filings and provides additional 

information regarding the ownership of the LLC members of Malden 

and Plain, those LLCs' members, and so on and so forth. The 

exhibits attached to the affidavit identify the ultimate owners of 

defendants' members as individuals, corporations, and trusts. 

Defendants identify the citizenship of the individuals by their 

domiciles, of the corporations by their principal places of 

business and states of incorporation, and the trusts by the 

domiciles of their trustees. Defendants assert that this corrected 

affidavit shows that there is complete diversity between all 

parties. 
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We conclude that Malden and Plain's filing is still 

insufficient to establish subject matter jurisdiction. Our 

reasoning follows.

II.

A.

Diversity jurisdiction allows federal courts to 

adjudicate controversies between citizens of different states. 

U.S. Const. art. III, § 2, cl. 1; 28 U.S.C. § 1332. Under the 

federal statute, as relevant here, diversity must be complete; 

that is, no plaintiff may be a citizen of the same state as any 

defendant. See Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267 

(1806); Halleran v. Hoffman, 966 F.2d 45, 47 (1st Cir. 1992). "The 

burden of establishing federal diversity jurisdiction rests 

on . . . the party invoking federal jurisdiction." Carrozza v. 

CVS Pharm., Inc., 992 F.3d 44, 51 (1st Cir. 2021). 

Key to establishing diversity jurisdiction are the 

citizenships of the parties before the court. Natural persons are 

citizens of the state in which they are domiciled. See AponteDávila v. Municipality of Caguas, 828 F.3d 40, 46 (1st Cir. 2016). 

But for legal entities, the Supreme Court has explained that the 

relevant citizenship for diversity purposes is generally the 

citizenship of the entity's members. There is a "limited exception 

for corporations"; a corporation is "considered a citizen of the 

State where it has its principal place of business," as well as a 
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citizen of its state of incorporation. Americold Realty Tr. v. 

Conagra Foods, Inc., 577 U.S. 378, 381 (2016); 28 U.S.C. § 1332(c). 

"But Congress never expanded this grant of citizenship to include 

artificial entities other than corporations, such as joint-stock 

companies or limited partnerships." Americold, 577 U.S. at 381. 

So, with exceptions not relevant here,7 non-corporate legal 

entities take the citizenship of all of their members. Id. It is 

therefore the members' citizenships that are relevant for 

jurisdictional purposes, not the principal place of business or 

the state of organization of the entity. See Carden v. Arkoma 

Assocs., 494 U.S. 185, 196–97 (1990) (noting Congress's 

designation of principal place of business and state of 

incorporation as relevant for corporations, but that "[n]o 

provision was made for the treatment of artificial entities other 

than corporations"). 

It is clear in this circuit that an LLC is subject to 

this rule and takes the citizenship of all of its members. Pramco, 

7 Under the Class Action Fairness Act ("CAFA"), in certain 

class actions, an unincorporated entity does not take the 

citizenship of all of its members but instead is considered "a 

citizen of the State where it has its principal place of business 

and the State under whose laws it is organized." 28 U.S.C. 

§ 1332(d)(10). The Court has also held that a specific type of 

Puerto Rico entity does not take the citizenship of its members. 

See Carden v. Arkoma Assocs., 494 U.S. 185, 189–90 (1990) 

(explaining that a "sociedad en comandita" is treated as a citizen 

of Puerto Rico for jurisdictional purposes, but noting that the 

exception is limited to that specific type of entity).
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453 F.3d at 54–55. If the members are themselves unincorporated 

associations, then those members' citizenships are relevant too;

the process is "iterative," and a party must "trace the citizenship 

of any member that is an unincorporated association through however 

many layers of members or partners there may be." D.B. Zwirn, 661 

F.3d at 126–27; see also West v. Louisville Gas & Elec. Co., 951 

F.3d 827, 830 (7th Cir. 2020) (noting that jurisdictional statement 

ultimately revealed 17 layers of ownership of LLC defendant, which 

court examined to ensure that "every branch of the chain led to a 

corporation that is neither incorporated in Indiana nor has a 

principal place of business there"). Parties cannot establish

federal subject matter jurisdiction merely by agreeing that the 

basis for jurisdiction is satisfied. See Wis. Dep't of Corr. v. 

Schact, 524 U.S. 381, 389 (1998) ("The presence of [a] nondiverse 

party automatically destroys original jurisdiction: No party need 

assert the defect. No party can waive the defect or consent to 

jurisdiction."); Am. Fiber & Finishing, Inc. v. Tyco Healthcare 

Grp., LP, 362 F.3d 136, 139 (1st Cir. 2004) ("[P]arties cannot 

confer subject matter jurisdiction on a federal court 'by 

indolence, oversight, acquiescence, or consent.'" (quoting United 

States v. Horn, 29 F.3d 754, 768 (1st Cir. 1994))).

B.

BRT has established that it is a citizen of 

Massachusetts, because its sole member is a natural person who is 
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a resident of Massachusetts.8 No further question remains about 

its citizenship. Defendants, however, are a different story.9

Malden and Plain's initial filings were inadequate 

because, as we stated in our order requesting jurisdictional facts, 

they did not show the members of all the members of defendant LLCs; 

that is, they failed to undertake the "iterative" process that is 

required to determine the citizenship of an unincorporated 

association whose members are themselves unincorporated 

associations. Their latest filing is still inadequate for the 

same reason. Although defendants have traced back several of their 

members' members to individuals and corporations, their affidavit 

and exhibits reveal that some of the ultimate owners of the nested 

LLCs that own the defendant LLCs are trusts. For each trust, 

8 Although diversity jurisdiction of a natural person is 

determined by domicile, there is no allegation in this case that 

Brian Wallace's domicile differed from his residence when the 

action was filed (or at any time since). See León v. Municipality

of San Juan, 320 F.3d 69, 70–71 (1st Cir. 2003) (holding that using 

term "resident" in complaint rather than "citizen" or 

"domiciliary" does not preclude exercise of diversity 

jurisdiction); see also 13E Charles Alan Wright & Arthur R. Miller, 

Federal Practice and Procedure § 3612 (3d ed. 2023) ("It is 

assumed, for example, that a person's current residence is also 

his domicile . . . .").

9 As we noted above, the burden of persuasion is on any party 

or parties seeking to invoke federal court jurisdiction. Here, 

the defendants have asked us to affirm the judgment of the district 

court. The defendants therefore are properly treated as among 

those parties seeking to invoke the jurisdiction of the federal 

court. We need not decide whether BRT at this point is also 

seeking to invoke the jurisdiction of the federal court.
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defendants provided the citizenship of only the trustee without 

describing the nature of the trust. This is insufficient to 

determine the trusts' citizenships. 

As the Supreme Court has explained, sometimes a trust is 

treated like an unincorporated association, taking as its 

citizenship the citizenship of its members. Americold Realty Tr., 

577 U.S. at 382. In Americold, the Court attributed "confusion" 

regarding trust citizenship to "tradition," because 

"[t]raditionally, a trust was not considered a distinct legal 

entity, but a 'fiduciary relationship' between multiple people," 

so "proceedings involving a trust were brought by or against the 

trustees in their own name[s]," and accordingly the trustees' 

citizenships were the ones that mattered. Id. at 383. But because 

states "have applied the 'trust' label to a variety of 

unincorporated entities" that can sue or be sued, those entities 

"possess[] the citizenship of all [their] members." Id. Many

circuit courts have interpreted this language to mean that a 

"traditional" trust -- one that "exists as a fiduciary relationship 

and not as a distinct legal entity" -- takes the citizenship of 

its trustee, while a trust which does exist as a separate legal 

entity takes the citizenship of all its members. See GBForefront, 

L.P. v. Forefront Mgmt. Grp., LLC, 888 F.3d 29, 39 (3d Cir. 2018); 

see also Wang ex rel. Wong v. New Mighty U.S. Tr., 843 F.3d 487, 

494 (D.C. Cir. 2016); Raymond Loubier Irrevocable Tr. v. Loubier, 
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858 F.3d 719, 729–32 (2d Cir. 2017). To determine whether a trust 

is traditional, courts have looked to whether it can sue and be 

sued, and the extent to which it is otherwise treated as a 

juridical person under state law. See Americold, 577 U.S. at 382; 

GBForefront, 888 F.3d at 40–41; Wang ex rel. Wong, 843 F.3d at 

494–95; Loubier, 858 F.3d at 729–31; Alliant Tax Credit 31, Inc.

v. Murphy, 924 F.3d 1134, 1143 (11th Cir. 2019). Defendants have 

not provided this information, thus precluding us from even trying 

to determine how to treat their trusts. 

Nor have defendants provided information about the 

trusts' beneficiaries or members (however defined) that might moot 

any need to determine whether it is necessary to look beyond the 

citizenship of the trust or its trustees. See, e.g., Zoroastrian 

Ctr. & Darb-e-Mehr of Metro. Wash., D.C. v. Rustam Guiv Found. of 

N.Y., 822 F.3d 739, 749–50 (4th Cir. 2016) (avoiding the need to 

determine whether the trustees or beneficiaries need be considered 

by showing that all of the trustees and beneficiaries were citizens 

of states other than those of which the opposing parties were 

citizens). 

BRT argues that defendants' submission has further 

defects as well. For some entities in defendants' ownership 

structures, defendants do not assert what type of organization 

(e.g., corporation, limited partnership, LLC) the entity is. As 

we have explained, how an entity is classified is relevant to how 
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its citizenship is determined for purposes of diversity 

jurisdiction. BRT also takes issue with the lack of supporting 

documentation to confirm the facts stated in defendants' affidavit

(such as articles of organization or declaration of trusts), as 

well as the failure to provide any information about Banner Drive 

Storage LLC -- initially a defendant, but dismissed because it 

would destroy diversity -- in the affidavit. We express no opinion 

about these additional arguments, or any other other than to 

emphasize that after several rounds of jurisdictional filings,

including an incorrect affidavit, there may well be cause to ask 

for at least some supporting documentation that would otherwise 

not normally be required.

In sum, we conclude that the record is insufficient to 

establish complete diversity between plaintiff and defendants

because it does not conclusively establish defendants' 

citizenships. The parties have now failed multiple times to 

establish diversity. Defendants' deficient second affidavit on 

appeal is particularly noteworthy because despite prevailing 

below, to the tune of millions of dollars, they have still failed 

to submit facts that show their citizenships even after being 

ordered to do so by this court. Arguably, dismissal would be

appropriate. See Guar. Nat'l Title Co. v. J.E.G. Assocs., 101 

F.3d 57, 59 (7th Cir. 1996) (dismissing case where "litigants . . . 

had chance after chance to establish diversity of citizenship" but 
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failed to do so (quoting America's Best Inns, Inc. v. Best Inns of 

Abilene, L.P., 980 F.2d 1072, 1074 (7th Cir. 1992))).

However, given the extent of the time and effort devoted 

to this case to date, we think it best to vacate the judgment and 

remand the case (while retaining jurisdiction) to give the parties 

one more chance to establish that the district court has subject 

matter jurisdiction. See Bearbones, Inc. v. Peerless Indem. Ins. 

Co., 936 F.3d 12, 16 (1st Cir. 2019) (remanding "to the district 

court to find the facts and determine whether there was complete 

diversity between the parties at the time the action was commenced" 

while retaining jurisdiction); Francis v. Goodman, 81 F.3d 5, 8–9 

(1st Cir. 1996) (same). Suffice it to say, defendants should not 

expect to recover fees or costs for this appeal to date or for the 

proceedings on remand. 

C.

We add a coda to recognize that where a plaintiff wishes 

to sue an unincorporated entity, the information necessary to 

establish jurisdiction may be uniquely in the possession of the 

would-be defendant. See Carolina Cas. Ins. Co., 741 F.3d at 1087 

("The novel issue presented by this case is how a plaintiff may 

allege diversity jurisdiction where the facts supporting 

jurisdiction are not reasonably ascertainable by the plaintiff."). 

The proceedings below, at least initially, illustrate this 

predicament. After the district court's second order to show 
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cause, BRT asserted that it was unable, through public record 

searches, to discover anything about the defendant LLCs other than 

their states of organization. 

We think sensible the approach adopted by the district 

court here, which allowed limited jurisdictional discovery after 

noting that "plaintiff ha[d] consulted all available public 

information and alleged, in good faith, that there is complete 

diversity of citizenship." If done right, limited and succinct 

jurisdictional discovery to confirm diversity that is otherwise 

not belied by what is known to the parties can assure the parties 

and the court at an early stage of litigation that complete 

diversity exists. 

III.

For the foregoing reasons, we vacate the judgment and 

remand this case to the district court to determine whether it has 

subject matter jurisdiction. If it does, it should re-enter the 

judgment; if not, it should dismiss the case for lack of 

jurisdiction. The parties shall bear their own costs.