NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 :

PNC EQUIPMENT FINANCE, LLC, : CIVIL ACTION NO. 11-759 (MLC)

 :

Plaintiff, : O P I N I O N

 :

v. :

 :

BBK&C INVESTMENTS LLC, et al., :

 :

Defendants. :

 :

THE PLAINTIFF, PNC Equipment Finance, LLC (“PNC”), brought

this action on February 10, 2011, to recover damages for breach

of contract against the defendants, BBK&C Investments LLC (“BBK”)

and John V. Johnson, II, and asserts 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).

PNC properly alleges that Johnson is an Ohio citizen. 

(Compl. at 2.) But PNC has failed to properly allege its own

citizenship and BBK’s citizenship. PNC merely alleges that it

“is a limited liability company organized under the laws of . . .

Delaware, with a business address [in] New Jersey”, and that BBK

“is an Ohio limited liability company with an address [in] Ohio”. 

(Id. at 1-2.) Limited liability companies are (1) unincorporated 

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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 citizenship. 

Id. at 420. The name and 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”).

PNC has failed to show that it is deemed to be a citizen 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 PNC 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., 82 N.J. 188, 

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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, with documentation properly demonstrating its

own citizenship and BBK’s citizenship. If PNC opts to move to

reopen, then it does so at its own peril, as the Court will not

further extend the thirty-day period to proceed in state court.

PNC is advised – if it opts 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 Grp.,

L.P., 541 U.S. 567, 571 (2004). Thus, PNC must properly (1) list

and analyze the citizenship of each member within PNC as it

existed on February 10, 2011, including non-managing and nonindividual members, and provide supporting documentation and

affidavits from those with knowledge of PNC’s structure, (2) list

and analyze the citizenship of each member within BBK as it

existed on February 10, 2011, including non-managing and nonindividual members, and provide supporting documentation and

affidavits from those with knowledge of BBK’s structure, and (3)

show that there is jurisdiction under Section 1332. The Court

advises PNC that it must specifically assert citizenship as it

existed on February 10, 2011.

THE COURT cautions PNC — if it opts to move to reopen —

against restating the allegations from the Complaint. The Court 

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advises PNC that an allegation as to where any party or member

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 v. ConocoPhillips Co., 335

Fed.Appx. 161, 162-63 (3d Cir. 2009); Cruz v. Pennsylvania, 277

Fed.Appx. 160, 162 (3d Cir. 2008). The Court advises PNC that an

allegation based upon information and belief, an assertion that

is not specific (e.g., citizen of “a state other than Ohio”), or

a request for time to discern jurisdiction will result in denial

of a motion to reopen, as PNC should have ascertained

jurisdiction before choosing to bring an action in federal court. 

See Freedman, 180 Fed.Appx. at 320. As PNC is represented by

counsel, the Court “should not need to underscore the importance

of adequately pleading and proving diversity”. CGB Occ. Therapy

v. RHA Health Servs., 357 F.3d 375, 382 n.6 (3d Cir. 2004).

THE COURT further advises PNC — if it opts to move to reopen

— to refrain from asserting confidentiality for any membership

layer. See Belleville Catering Co. v. Champaign Mkt. Place, 350

F.3d 691, 693 (7th Cir. 2003) (stating such details cannot be

kept confidential from the judiciary); Emerald Investors Trust v.

Gaunt Parsippany Partners, 492 F.3d 192, 207 n.22 (3d Cir. 2007)

(rejecting, in jurisdictional analysis, partnership’s “attempts

to keep the identity of its limited partners confidential insofar

as possible”, as “the district court must know who they are and

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where they are citizens and its need for that information will

trump [that partnership’s] policies”).

THE COURT will issue an appropriate order and judgment.

 s/ Mary L. Cooper 

MARY L. COOPER

United States District Judge

Dated: April 29, 2011

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