United States District Court, M.D. Florida, Fort Myers Division
MID-CONTINENT CASUALTY COMPANY, a foreign corporation Plaintiff,
G.R. CONSTRUCTION MANAGEMENT, INC. and DANA M. DICARLO, as Trustee of the DANA M. DICARLO REVOCABLE TRUST DATED FEBRUARY 1, 2007, Defendants.
OPINION AND ORDER 
POLSTER CHAPPEW UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Plaintiff Mid-Continent
Casualty Company's (“Mid-Continent”) Response
to Order to Show Cause (Doc. 16) filed on March 10, 2017. In
its response, Mid-Continent provided insufficient information
for this Court to determine if it has subject matter
jurisdiction under 28 U.S.C. § 1332. (Doc. 16). Thus,
the Complaint is dismissed without prejudice.
jurisdictional concerns arise when a trust or trustee is
involved. (Doc. 10). “If a complaint's factual
allegations do not assure the court it has subject matter
jurisdiction, then the court is without power to do anything
else in the case.” Travaglio v. Am. Exp. Co.,
735 F.3d 1266, 1269 (11th Cir. 2013) (citation omitted).
Mid-Continent has the burden to plead diversity and must
allege facts demonstrating the existence of diversity
jurisdiction. See Wells Fargo Bank, N.A. v.
Mitchell's Park, LLC, 615 F. App'x 561, 563
(11th Cir. 2015) (“The party filing a diversity lawsuit
in federal court bears the burden of establishing, by a
preponderance of the evidence, that all parties are
completely diverse.”); see also Bryant v.
Ally Fin., 452 F. App'x 908, 910 (11th Cir. 2012)
(discussing the need for complete diversity to establish
federal subject matter jurisdiction). Here, Mid-Continent has
not plead facts or provided sufficient information to
establish diversity jurisdiction. (Doc. 1; Doc. 16).
start, it is still unclear if Mid-Continent is suing (1) Dana
M. Dicarlo in her capacity as a trustee or (2) the Dana M.
Dicarlo Trust. Simply put, is Mid-Continent suing the trust,
trustee, or both? The Court expects Mid-Continent to clear up
this issue, if it chooses to amend. Moreover,
Mid-Continent's allegation that Dana M. Dicarlo is
“residing” in Baltimore, Maryland is not enough
to establish diversity. (Doc. 1 at ¶ 4). Where a party
invokes federal subject matter jurisdiction based on
diversity, he or she must allege facts sufficient to show the
citizenship of each party. See Triggs v. John
Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir. 1998)
(citation omitted). “Citizenship, not residence, is the
key fact that must be alleged in the complaint to establish
diversity . . . .” Taylor v. Appleton, 30 F.3d
1365, 1367 (11th Cir. 1994). Mid-Continent has not alleged
Dana M. Dicarlo's citizenship and, therefore, has not
also “believes that the [Dana M. DiCarlo Revocable
Trust Dated February 1, 2007] is a ‘traditional
trust' established for the benefit of its beneficiar[ies]
. . . .” (Doc. 16 at ¶ 8). To the extent
Mid-Continent is suing a traditional trust, it needs to plead
the citizenship of all trustees. See Americold
Realty Trust v. Conagra Foods, Inc., 136 S.Ct. 1012,
1016 (2016). While Mid-Continent contends that it possesses
no specific knowledge regarding the number of trustees, that
does not relieve its burden to plead facts sufficient to
establish jurisdiction. (Doc. 16 at ¶ 7). Further, the
“mere designation of an entity as a trust rather than
an unincorporated association is not controlling for purposes
of determining diversity of citizenship.” Bearse v.
Main St. Investments, 220 F.Supp.2d 1338, 1344 (M.D.
Fla. 2002) (citing Xaros v. U.S. Fid. &
Guar. Co., 820 F.2d 1176, 1181 (11th Cir. 1987)).
Therefore, Mid-Continent must allege facts sufficient to
establish Dana M. Dicarlo Revocable Trust as a traditional
trust. But if it turns out that the Dana M. Dicarlo Revocable
Trust is an unincorporated business trust, citizenship is
based on the citizenship of its shareholders.
Crook-Petite-El v. Bumble Bee Seafoods L.L.C., 502
F. App'x 886, 887 (11th Cir. 2012) (citation omitted).
Mid-Continent is suing Dana M. Dicarlo as a trustee, the
citizenship of the trustee is what matters for diversity
purposes. See Navarro Sav. Ass'n v.
Lee, 446 U.S. 458, 465 (1980). But a trustee also must
have customary powers to hold, manage, and dispose of assets
for the benefits of others to be a real party to the
controversy. Id. at 464. Therefore, Mid-Continent
must not only establish Dana M. Dicarlo's citizenship,
but also establish her as a real party to the controversy.
Court will allow Mid-Continent an additional opportunity to
amend its Complaint to cure the defective jurisdictional
it is now
Complaint (Doc. 1) is DISMISSED without prejudice.
Plaintiff Mid-Continent Casualty Company may file an Amended
Complaint on or before April 24, 2017, that properly alleges
federal jurisdiction. Failure to
by the deadline will result in this matter being closed DONE
and ORDERED in Fort Myers, Florida this 10th day of April,