IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

BRANCH BANKING & TRUST CO.,

a North Carolina banking corporation, 

as successor in interest to Colonial Bank

by asset acquisition from the FDIC

as receiver for Colonial Bank, 

Plaintiff,

vs. CASE NO. 3:11-cv-110/RS-EMT

T. HENRY DEVELOPMENT CO., L.L.C.,

a Florida limited liability company; and

THOMAS HENRY,

Defendants.

_________________________________________/

UORDER

Before me is Defendants‟ Motion to Dismiss (Doc. 13) and Plaintiff‟s Opposition

to Defendants‟ Motion to Dismiss (Doc. 18). 

UI. Standard of Review

Rule 12(b)(1) of the Federal Rules of Civil Procedure requires dismissal of claims 

for “lack of subject-matter jurisdiction.” See FED. R. CIV. P. 12(b)(1). A motion to 

dismiss under Rule 12(b)(1) may assert either a factual attack or a facial attack to 

jurisdiction. Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260 (11th Cir. 2009)

(citations omitted). A factual attack challenges the existence of subject matter 

jurisdiction in fact, irrespective of the pleadings. Matters outside the pleadings, such as 

testimony and affidavits, are considered. Id. In a facial attack, on the other hand, the 
court examines whether the complaint has sufficiently alleged subject-matter jurisdiction

and construes the complaint in the light most favorable to Plaintiff and accepts all facts 

alleged in the complaint as true. Id; Trimble v. United States Soc. Sec., 2010 U.S. App. 

LEXIS 4811, at *8 (11th Cir. 2010). 

II. Discussion

Plaintiff alleges jurisdiction is proper under 28 U.S.C. § 1332. The Complaint 

(Doc. 1) states that Plaintiff, a banking corporation, is “headquartered in Winston-Salem, 

North Carolina with offices in the state of Florida.” The Complaint also states that 

Defendant T. Henry Development, LLC is organized under the laws of Florida, and 

Defendant Thomas Henry is a resident of Florida. 

For federal diversity jurisdiction to attach, all parties must be completely diverse. 

Complete diversity requires that “each defendant is a citizen of a different State from 

each plaintiff.” Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978) 

(emphasis original). The party commencing the suit has the burden of establishing, by a 

preponderance of the evidence, facts supporting the existence of federal jurisdiction. 

Underwriters at Lloyd's, London v. Osting-Schwinn, 613 F.3d 1079, 1085 (11th Cir. 

2010). 

A corporation is “deemed to be a citizen of any State by which is has been 

incorporated and of the State where it has its principal place of business.” 28 U.S.C. § 

1332(c)(1). The phrase “principal place of business” refers to the place where a 

“corporation‟s officers direct, control, and coordinate the corporation‟s activities.” Hertz 

Corp. v. Friend, 130 S. Ct. 1181, 1192 (2010). This location has often been called the 
corporation‟s “nerve center.” In practice, the “nerve center” is the place where the 

corporation maintains its headquarters--provided that the headquarters is the actual center 

of direction, control, and coordination. “A corporation‟s „nerve center,‟ usually its main 

headquarters, is a single place.” Id. at 1192-93. 

Here, Defendants assert in this factual attack that Plaintiff lacks diversity 

jurisdiction because it does not pass the “nerve center test” as “Plaintiff‟s numerous 

locations in the State of Florida argue against the lack of presence of headquarters in 

[North Carolina].” (Doc. 13, p. 3-4). Defendants‟ assertion completely lacks merit. 

Plaintiff states that it is a North Carolina chartered bank and has been charted in 

North Carolina since 1872 (Doc. 18, p. 2). This assertion is supported by the North 

Carolina Commissioner of Bank‟s website, of which I take judicial notice. North 

Carolina Commissioner of Banks, https://www.nccob.org/Online/brts/BanksAnd

Trusts.aspx (last visited April 18, 2011). Plaintiff is therefore a citizen of North Carolina 

because its situs of incorporation in that state. 28 U.S.C. § 1332 (c)(1). 

Turning to the principal place of business prong, the Plaintiff asserts that its 

headquarters are in North Carolina and that this is the location from which its corporate 

officers coordinate and direct its various branch locations. This North Carolina location 

houses the CEO and the General Counsel, and is where the Board of Directors holds 

meetings. Of the 1782 branches in twelve states and the District of Columbia, only a 

fraction are in Florida (Doc. 18, p. 2). Defendant does not refute these assertions and the 

FDIC website provides that Plaintiff has “its main office (headquarters)” in North 

Carolina. FDIC Bank Find, http://www2.fdic.gov/idasp/main_bankfind.asp (last visited 
April 18, 2011). The overwhelming weight of evidence, therefore, supports that 

Plaintiff‟s principal place of business is in North Carolina. See also Branch Banking & 

Trust Co. v. Inn at Dauphin Island, L.L.C., 2011 U.S. Dist. LEXIS 40284 (S.D. Ala. 

2011); Branch Banking & Trust Co. v. Gulf Island Dev., L.L.C., 2010 U.S. Dist. LEXIS 

92963 (S.D. Ala. 2010); Intec USA, LLC v. Advanced Food Sys., B.V., 2009 U.S. Dist. 

LEXIS 23821 (M.D.N.C. 2009); Justice v. Branch Banking & Trust Co., 2009 U.S. Dist. 

LEXIS 24668 (S.D. W. Va. 2009); Cole Shows Amusement Co. v. Branch Banking & 

Trust Co., 2007 U.S. Dist. LEXIS 38729 (W.D. Va. 2007); (all cases finding BB&T has 

principal place of business in North Carolina). This is a motion that should not have been 

filed. 

Defendant‟s Motion to Dismiss (Doc. 13) is DENIED. 

 

ORDERED on April 18, 2011.

 /S/ Richard Smoak

 RICHARD SMOAK

 UNITED STATES DISTRICT JUDGE