United States District Court, M.D. Florida, Orlando Division
AMERICANO BEACH LODGE RESORT CONDOMINIUM ASSOCIATION, INC., Plaintiff,
ARIEL SPECIALTY INSURANCE MANAGERS ON BEHALF OF ARIEL SYNDICATE 1910, Defendant.
REPORT AND RECOMMENDATION
R. SPAULDING UNITED STATES MAGISTRATE JUDGE
THE UNITED STATES DISTRICT COURT:
cause came on for consideration sua sponte based
upon the Court's review of the case for subject-matter
jurisdiction. The United States Court of Appeals for the
Eleventh Circuit has instructed district courts “to
initiate an inquiry into our subject-matter jurisdiction
whenever we become concerned that it may not exist.”
Gilchrist v. State Farm Auto. Mut. Ins. Co., 390
F.3d 1327, 1330 (11th Cir. 2004) (citations omitted).
present case, Plaintiff, Americano Beach Lodge Resort
Condominium Association, Inc. (“Americano”)
brought suit against Defendant Ariel Specialty Insurance
Managers on Behalf of Ariel Syndicate 1910 (“Ariel
Specialty”), alleging that this Court had subject
matter jurisdiction over this case based on diversity of
citizenship, 28 U.S.C. § 1332. Doc. No. 1-2.
factual allegations of the complaint were deficient with
regard to the citizenship of the parties. Americano alleged
that it is a Florida “non-profit corporation licensed
to do business in Florida, and conducting business in Volusia
County, Florida.” Doc. No. 1 ¶ 1. It alleged that
Ariel Specialty is “a Delaware registered company
licensed to do business in Florida, and . . . doing business
in Volusia County, Florida.” Id. ¶ 2.
that Americano had not adequately plead its own citizenship
because it stated merely that it was licensed to do business
in Florida and that it was doing business in Volusia County,
rather than stating its place of incorporation or its
principal place of business. With regard to Ariel
Specialty's citizenship, Americano did not allege whether
Ariel Specialty was a corporation or another kind of entity.
If Ariel was a corporation, Plaintiff failed to properly
identify its place of incorporation and its principal place
of business. The allegations that Defendant was
“registered” in Delaware and did business in
Volusia County also would not be sufficient to establish the
citizenship of any other type of entity.
therefore issued an Order to Show Cause why this case should
not be dismissed for lack of subject matter jurisdiction.
Doc. No. 3. I required Plaintiff to respond to the Order by
presenting sufficient evidence for the Court to determine the
citizenship of both parties in accordance with the principles
set forth in the Order and governing law. Id.
filed a response in which it established that it is a citizen
of Florida. Doc. No. 6, at 2. It stated that, prior to the
filing of the complaint, Ariel Specialty represented to
Americano's counsel that Ariel Specialty was diverse from
Americano, such that if Americano filed the case in state
court, Ariel Specialty would remove it to this Court.
Id. at 1. Based on those representations, Americano
filed this case in this Court. Attached to the response,
Americano filed a declaration from Kevin Hutcheon, an
individual responsible for managing property claims on behalf
of Ariel Syndicate 1910. Doc. No. 6-5. Mr. Hutcheon stated
that Ariel Syndicate 1910 issued the insurance policy at
issue in this case. Id. at 1, ¶ 2. Americano
therefore suggests that the proper Defendant entity and real
party in interest is Ariel Syndicate 1910 and not Ariel
Specialty. However, Americano noted that it had no knowledge
of the relationship between Ariel Specialty and Ariel
Syndicate 1910 other than what was set forth in Mr.
Hutcheon's declaration. Id. at 3.
Hutcheon's declaration does not establish Ariel Syndicate
1910's citizenship. It merely states that Ariel Syndicate
1910 is located in London and that its sole underwriting
member “is Ariel Corporate Member Limited, a citizen
and private limited company incorporated and registered in
England and Wales, with its corporate headquarters and
principal place of business in London, United Kingdom.”
Doc. No. 6-5 ¶ 5.
15, 2018, I entered another Order to Show Cause, noting that
Americano's response was insufficient because it did not
provide any legal authority discussing the facts required to
be alleged or proven to establish Ariel Specialty's
citizenship. I therefore required Americano to either provide
a supplemental response supported by legal authority
sufficient to determine how Ariel Specialty's citizenship
should be ascertained or to file an amended complaint
identifying the proper party Defendant and alleging
sufficient facts to establish the citizenship of each party.
31, 2018, Americano filed a supplemental response in which it
stated that it “has no further information” to
support the allegations in its complaint as to Ariel
noted in my Order to Show Cause, “In an action filed
directly in federal court, plaintiff bears the burden of
adequately pleading, and ultimately proving,
jurisdiction.” Moreno v. Breitburn Fla., LLC,
No. 2:09-cv-566-FtM-29DNF, 2011 WL 2293124, at *1 (M.D. Fla.
June 9, 2011) (citation omitted). Americano failed to
adequately plead Ariel's citizenship in its complaint. It
has acknowledged that it is unable to cure this deficiency
with evidence. See e.g., Travaglio v. Am. Express
Co., 735 F.3d 1266, 1270 (11th Cir. 2011) (allowing
defective allegations regarding citizenship to be cured
through record evidence). As a result, the Court is left with
a complaint that does not adequately allege diversity of
citizenship. In such a situation, the proper course is to
dismiss the complaint with leave to amend. See Majd-Pour,
Georgiana Comm. Hosp., Inc., 724 F.2d 901, 903 & n.
1 (11th Cir. 1984) (finding that district court abused its
discretion when it dismissed a complaint for lack of subject
matter jurisdiction for failure to prove all facts necessary
to establish jurisdiction at a TRO hearing without allowing
plaintiff to conduct discovery, but noting that the district
court's dismissal was based on plaintiff's failure to
prove jurisdictional facts at the hearing and not upon any
deficiencies in allegations of the complaint; concluding that
the district court should dismiss the original complaint with
leave to amend if it found on remand that the jurisdictional
allegations were deficient); McElmurray v. Consol.
Gov't of Augusta-Richmond Cty., 501 F.3d 1244,
1250-51 (11th Cir. 2007) (citations omitted) (district court
did not err in dismissing complaint for lack of subject
matter jurisdiction without first permitting discovery
because it did not resolve any disputed issues of fact and
resolved the case on the face of the pleadings).
I RESPECTFULLY RECOMMEND that the Court
DISMISS Americano's complaint without
prejudice and GRANT Americano leave to file
an amended complaint within a period of time set by the
Court. If Americano cannot adequately plead diversity of
citizenship in compliance with Federal Rule of Civil
Procedure 11, it should file its complaint in state court.