Tuesday, November 3, 2015

The Sufficiency of the Declaration as to Ownership and Citizenship

The Sufficiency of the Declaration as to Ownership and Citizenship

      In a recent decision out of a Federal District Court in New York, it considered and dismissed challenges to the sufficiency of the declarations by an LLC as to its owners and their citizenship. Bryndle v Boulevard Towers, II, LLC, No. 6:12-CV-06090 EAW, 2015 WL 5517998, ___ F. Supp.3d ___ (W.D. N.Y. Sept. 17, 2015).

      Bryndle sued Boulevard Towers, II, LLC for damages he allegedly suffered when he slipped and fell on ice on Boulevard Towers’ parking lot.  The defendant removed the action to federal court based upon diversity jurisdiction.  The official notice of removal was deficient for failure to provide the citizenship of each of the LLC’s members, and Boulevard Towers was directed to provide a statement curing that deficiency.  Subsequently, the plaintiff challenged the submission made, asserting it to be:
“Deficient in several respects,” including that the declaration is not made by Defendant,” there is no documentary evidence confirming the residence of the various entities and individuals, and the declarant does not state that he has personal knowledge of the various entities.
      The declaration had been submitted by an officer of Siara Management, LLC, the managing agent for the defendant, and it stated that the members of the defendant LLC are citizens of Ohio, Georgia, Virginia, North Carolina, Michigan, Florida, and Israel. In that the plaintiff was a citizen of New York, complete diversity existed.
       Rejecting the plaintiff's challenge to the declaration, the court wrote:
Contrary to Plaintiffs (sic – Plaintiff’s) contentions, there is no requirement that a corporate [Ughhh] defendant seeking to establish diversity jurisdiction submit a declaration or affidavit from an officer of the corporation [again, Ughhh] or documentary evidence supporting the claim diversity of citizenship.  Rather, 28 U.S.C. § 1446(a) simply requires the filing of a “notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure,” which would permit a statement to simply be signed by counsel.  Here, due to the Court request at oral argument, defendant went even further and submitted a declaration made under penalties of perjury pursuant to 28 U.S.C. § 1746 by Mr. Fyffe, who oversaw the operation, maintenance, and function of Defendant’s property for over a decade.  As result, Defendant has adequately established this Court's diversity jurisdiction.  
2015 WL 5517998, *4.
The editorial “Ughhh” is in response to the references to an LLC as being corporate or a corporation.

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