United States District Court, S.D. Florida
BLOOM UNITED STATES DISTRICT JUDGE.
CAUSE is before the Court upon Defendant Craig Wright’s
Motion for Judgment on the Pleadings, ECF No. 
(“Motion”). The Court has reviewed the Motion,
all supporting and opposing submissions, the record and
applicable law, considered the arguments presented by counsel
at the hearing on July 10, 2019, and is otherwise fully
advised. For the reasons that follow, the Motion is denied.
factual background giving rise to this action has been set
forth previously in prior opinions issued by this Court and
are incorporated by reference. See e.g. ECF No.
. The facts relevant to the instant Motion are as
follows. On April 15, 2019, the Defendant filed the instant
Motion challenging the Court’s subject matter
jurisdiction. Specifically, the Defendant argues that the
record evidence demonstrates that Dave Kleiman was not the
sole member of Plaintiff W&K Info Defense Research, LLC
(“W&K”), and that other members of the
company exist whose membership would destroy diversity. The
other proposed members include: 1) Uyen Nguyen
(“Nguyen”); 2) Coin-Exch PTY Ltd.
(“Coin-Exch”); and 3) Lynn Wright.
the Defendant argues that the Second Amended Complaint
(“SAC”), ECF No. , is deficient because it
alleges that both that W&K’s exact ownership
structure is “unclear due to Craig’s
contradictory statements” and that “[a]s best as
can presently be discerned, [Dave Kleiman] was the sole
‘member’ of W&K.” ECF No. , at
¶¶ 70-71. Therefore, the Defendant challenges the
Court’s subject matter jurisdiction in both a factual
and facial attack. On July 10, 2019, the Court held an
extensive hearing (“Hearing”) on the instant
courts are courts of limited jurisdiction.”
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994). It is presumed that a federal court lacks
jurisdiction in a particular case until the plaintiff
demonstrates the court has jurisdiction over the subject
matter. See Id. (citing Turner v. Bank of No.
Am., 4 U.S. 8, 11 (1799); McNutt v. Gen. Motors
Acceptance Corp. of Ind., 298 U.S. 178, 182 (1936)
(“It is incumbent upon the plaintiff properly to allege
the jurisdictional facts ....”)). A district court may
inquire into the basis of its subject matter jurisdiction at
any stage of the proceedings. See 13 C. WRIGHT, A.
MILLER & E. COOPER, Federal Practice & Procedure
§ 3522 (1975).
on subject matter jurisdiction under Rule 12(b)(1) of the
Federal Rules of Civil Procedure may be either facial or
factual. See Lawrence v. Dunbar, 919 F.2d 1525,
1528-29 (11th Cir. 1990). Like a Rule 12(b)(6) motion,
“[a] ‘facial attack’ on the complaint
requires the court merely to look and see if plaintiff has
sufficiently alleged a basis of subject matter jurisdiction,
and the allegations in the complaint are taken as
true....” Menchaca v. Chrysler Credit Corp.,
613 F.2d 507, 511 (5th Cir. 1980) (citing Mortensen v.
First Fed. Sav. & Loan Ass’n, 549 F.2d 884,
891 (3d Cir. 1977)). Factual attacks differ because they
“challenge[ ] the existence of subject matter
jurisdiction in fact ... and matters outside of the
pleadings, such as testimony and affidavits, are
considered.” Id. If a defendant shows a lack
of diversity by meeting its burden of production for a
factual attack, then the plaintiff must respond with proof
definitively evincing diversity exists. See OSI, Inc. v.
United States, 285 F.3d 947, 951 (11th Cir. 2002).
Factual attacks also differ from facial attacks because
“no presumptive truthfulness attaches to
plaintiff’s allegations, and the existence of disputed
material facts will not preclude the trial court from
evaluating for itself the merits of jurisdictional
claims.” Mortensen, 549 F.2d at 891.
instant Motion, the Defendant argues that the SAC should be
dismissed because the Court lacks subject matter jurisdiction
over this action. Federal district courts have subject matter
jurisdiction over civil actions where the amount in
controversy exceeds $75,000.00 and the suit is between
citizens of different states. See 28 U.S.C. §
1332(a). In analyzing diversity, the citizenship of a limited
liability company is determined by the citizenship of its
members. See Rolling Greens MHP, L.P. v. Comcast SCH
Holdings L.L.C., 374 F.3d 1020, 1022 (11th Cir. 2004)
(requiring all LLC members to be diverse from all opposing
parties). In the Defendant’s Motion, he asserts a
factual challenge on subject matter jurisdiction. However, in
his Reply, the Defendant has focused on a facial challenge.
Compare ECF No. , at 9-14 with ECF No.
, at 5. As for his factual attack, the Defendant
suggests that other foreign members of W&K exist and thus
diversity jurisdiction is destroyed. ECF No. , at 9-14.
As for the Defendant’s facial argument, the Defendant
contends that the SAC fails to allege the complete membership
of W&K and includes language that reveals that the
Plaintiff may be uncertain as to the company’s actual
ownership. ECF No. , at 5. Thus, the Defendant claims
that the SAC is facially deficient by failing to adequately
allege diversity jurisdiction exists. The Court addresses
each argument in turn.
first focuses his factual attack on the Court’s subject
matter jurisdiction. “While the plaintiff has the
burden to prove diversity in a factual attack, that burden
exists only if the defendant has first proffered evidence to
show a lack of diversity.” JPMCC 2005-CIBC13
Collins Lodging, 2010 WL 11452084, at *3 (denying
motion because defendant’s “factual attack on
diversity of citizenship is devoid of evidentiary
support”) (emphasis added); see also RG Martin
Investments, LLC v. Virtual Tech. Licensing, LLC, 2017
WL 7792564 at *2 (S.D. Fla. July 7, 2017) (“The burden
of pleading diversity of citizenship is upon the party
invoking federal jurisdiction, and if jurisdiction is
properly challenged, that party also bears the
burden of proof.”) (emphasis added). For the reasons
that follow, the Court finds that the Defendant has failed to
provide credible evidence showing a lack of
diversity. As such, he has failed to satisfy his burden of
Motion, Defendant argues that both Nguyen and Coin-Exch were
members of W&K, and that their membership would destroy
diversity in this action. ECF No. , at 11-13. Then, for
the first time in his Reply, the Defendant argues that his
ex-wife Lynn Wright was also a member of W&K. ECF No.
, at 6-7.
What a tangled web we weave when first we practice to
deceive.” Sir ...