NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

:

RICHARD ANNUNZIATA, et al., : CIVIL ACTION NO. 10-3227 (MLC)

:

Plaintiffs, : O P I N I O N

:

v. :

:

GINO PALAZZOLO, et al., :

:

Defendants. :

 :

THE PLAINTIFFS PRO SE — Richard Annunziata, and Putnam at

Deptford, LLC (“PDLLC”) — (1) brought this action on June 24,

2010, to recover damages for breach of contract, and (2) assert

jurisdiction under 28 U.S.C. § (“Section”) 1332. (Dkt. entry no.

1, Compl.) The Court will sua sponte dismiss the Complaint

without prejudice. See Fed.R.Civ.P. 12(h)(3) (instructing court

to dismiss complaint if jurisdiction is lacking).

THE PLAINTIFFS show that Annunziata is a New York citizen by

providing his address. (Compl. at 1.) But the plaintiffs fail

to properly allege PDLLC’s citizenship. (Id. at 2.) PDLLC is a

limited liability company. Limited liability companies are (1)

unincorporated associations, and (2) deemed to be citizens of

each state in which their members are citizens, not the states in

which they were formed or have their principal places of business. 

Zambelli Fireworks Mfg. Co. v. Wood, 592 F.3d 412, 418-20 (3d Cir.

2010). The citizenship of each membership layer must be traced

and analyzed to determine a limited liability company’s

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citizenship. Id. at 420. The citizenship of each member must be

specifically alleged. See S. Freedman & Co. v. Raab, 180

Fed.Appx. 316, 320 (3d Cir. 2006) (stating citizenship is to be

alleged “affirmatively and distinctly”); Vail v. Doe, 39 F.Supp.2d

477, 477 (D.N.J. 1999) (stating citizenship allegation that is

based upon information and belief “does not convince the Court

that there is diversity among the parties”). The plaintiffs fail

to allege the name and citizenship of each member of PDLLC.

PDLLC is proceeding pro se. That is improper. A limited

liability company cannot represent itself pro se in federal

court, and can proceed only if it is represented by a licensed

attorney. Curbison v. U.S. Gov’t of N.J., 242 Fed.Appx. 806,

808-09 (3d Cir. 2007); Super 8 Worldwide v. KNR Hotels, No. 09-

3302, 2009 WL 4911942, at *4 (D.N.J. Dec. 11, 2009); Koken v.

Morelli, No. 06-1024, 2007 WL 2990681, at *3 (D.N.J. Oct. 10,

2007); Beale v. Dep’t of Justice, No. 06-2186, 2007 WL 327465, at

*3 (D.N.J. Jan. 30, 2007).

THE PLAINTIFFS allege that the defendant Gino Palazzolo “is

a resident of New Jersey”, without providing his address. (Compl.

at 2.) But an allegation as to where a person resides, is

licensed, or has a place of business — as opposed to is a citizen —

does not properly invoke the Court’s jurisdiction. See McCracken

v. ConocoPhillips Co., 335 Fed.Appx. 161, 162-63 (3d Cir. 2009);

Cruz v. Pennsylvania, 277 Fed.Appx. 160, 162 (3d Cir. 2008).

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THE PLAINTIFFS allege that the defendant Gino’s 2002

Irrevocable Trust (“Trust”) “is a resident of New Jersey”. 

(Compl. at 2.) The Court, when determining a trust’s

citizenship, “is to look to the citizenship of both the trustee

and the beneficiary in all cases”. Emerald Investors Trust v.

Gaunt Parsippany Partners, 492 F.3d 192, 203 (3d Cir. 2007); see

id. at 205 (stating citizenship of both the trustee and the

beneficiaries control in determining trust’s citizenship). The

plaintiffs have not provided this information to the Court.

THE PLAINTIFFS have failed to show that they are deemed to

be citizens of a different state in relation to each defendant. 

See 28 U.S.C. § 1332(a)(1); Lincoln Prop. Co. v. Roche, 546 U.S.

81, 89 (2005) (requiring complete diversity between each plaintiff

and each defendant). Thus, the Court will dismiss the Complaint,

but will do so without prejudice to the plaintiffs to either –

within thirty days – (1) recommence the action in state court, as

the limitations period for the cause of action is tolled by the

filing of a federal complaint, see Jaworowski v. Ciasulli, 490

F.3d 331, 333-36 (3d Cir. 2007); Galligan v. Westfield Ctr. Serv.,

Inc., 82 N.J. 188, 191-95 (1980), or (2) move in accordance with

the Federal Rules of Civil Procedure and the Local Civil Rules to

reopen the action in federal court. If the plaintiffs opt to move

to reopen, then they do so at their own peril, as the Court will

not further extend the thirty-day period to proceed in state court.

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THE PLAINTIFFS are advised – if they opt to move to reopen –

that jurisdiction is measured “against the state of facts that

existed at the time of filing”. Grupo Dataflux v. Atlas Global

Group, 541 U.S. 567, 571 (2004). Thus, the plaintiffs must

properly demonstrate (1) PDLLC’s citizenship as it existed on

June 24, 2010, i.e., list and analyze each member, including nonmanaging and non-individual members, and provide supporting

documentation and affidavits from those with knowledge of PDLLC’s

structure, (2) that PDLLC is represented by a licensed attorney

in this action, (3) Palazzolo’s citizenship as it existed on June

24, 2010, with supporting documentation, (4) the Trust’s

citizenship as it existed on June 24, 2010, i.e., list and

analyze the trustee and each beneficiary, with supporting

documentation and affidavits from those with knowledge of the

Trust’s structure, and (5) that there is jurisdiction under

Section 1332. The Court advises the plaintiffs that they must

specifically assert citizenship as it existed on June 24, 2010.

THE COURT cautions the plaintiffs — if they opt to move to

reopen — against restating the allegations from the Complaint. 

The Court advises the plaintiffs that an allegation as to where

any party resides, is licensed, or has a place of business — as

opposed to is a citizen or is domiciled — will not properly

invoke the Court’s jurisdiction. See McCracken, 335 Fed.Appx. at

162-63. The Court advises the plaintiffs that an allegation

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based upon information and belief, an assertion that is not

specific (e.g., citizen of “a state other than New York”), or a

request for time to discern jurisdiction will result in denial of

a motion to reopen, as the plaintiffs should have ascertained

jurisdiction before choosing to bring an action in federal court. 

See Freedman, 180 Fed.Appx. at 320.

THE COURT will issue an appropriate order and judgment.

 s/ Mary L. Cooper 

MARY L. COOPER

United States District Judge

Dated: June 25, 2010

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