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COHEN v. KURTZMAN

United States District Court, District of New Jersey


January 11, 1999

JONATHAN M. COHEN, PLAINTIFF,
v.
ERIC C. KURTZMAN, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Lechner, District Judge.

OPINION

This is an action brought by the plaintiff, Jonathan M. Cohen ("Cohen"), against the defendants, Eric C. Kurtzman ("Kurtzman"), Kurtzman Cohen Matera and Gurock, a New York sole-proprietorship ("KCMG-NY") and predecessor to the law firm of Kurtzman Resnik Matera & Gurock, LLP, a New York limited liability partnership ("KRMG-NY") (collectively, the "Defendants"). In a complaint filed on 16 June 1998, (the "Complaint"), Cohen alleges, inter alia, KCMG-NY, KRMG-NY and Kurtzman breached partnership and employment agreements with Cohen, breached their fiduciary duty, wrongfully converted partnership assets and wrongfully withheld employee earnings. See Complaint at ¶ 1. Jurisdiction is premised upon 28 U.S.C. § 1332(a)(1) ("Section 1332(a)(1)") because Cohen asserts "there exists complete diversity of citizenship between the plaintiff and all defendants, and the amount in controversy exceeds the sum of seventy five thousand dollars ($75,000.00) exclusive of interest and costs." See Complaint at ¶ 2.

Currently pending is the motion of the Defendants to dismiss the Complaint, pursuant to Fed.R.Civ.P. 12(b)(1) ("Rule 12(b)(1)"), for lack of subject matter jurisdiction (the "Motion to Dismiss"). Also pending is the motion of the Defendants for sanctions, pursuant to Fed.R.Civ.P. 11 ("Rule 11") (the "Motion for Sanctions").*fn1

For the reasons set forth below, the Motion to Dismiss is granted; the Motion for Sanctions is granted.

Background

A. Facts

KRMG-NY is a law practice which presently maintains offices in Rockland County, New York. Kurtzman, along with Kenneth Resnik ("Resnik"), Rosemarie Matera ("Matera"), Howard Gurock ("Gurock"), are partners of KRMG-NY.*fn2 See Kurtzman R. 12(b)(1) Aff. at ¶ 2. Kurtzman, Cohen, Matera and Gurock originally were engaged in the practice of law under the predecessor firm, KCMG-NY. See id. KCMG-NY was a sole proprietorship, of which Kurtzman was the sole proprietor. See Kurtzman R. 12(b)(1) Reply Aff. at ¶ 2. The offices of KCMG-NY also were located in Rockland County, New York. See Complaint at ¶ 8.

Upon the departure of Cohen in November 1997, it appears KCMG-NY continued to practice law as a limited liability partnership under the name "Kurtzman Resnik Matera & Gurock, LLP." See Kurtzman R. 12(b)(1) Aff. at ¶ 2; Kurtzman R. 12(b)(1) Reply Aff. at ¶ 3. On 1 December 1997, KRMG-NY assumed the assets and liabilities of KCMG-NY. See Complaint at ¶ 15; see also Feldstein 12(b)(1) Aff.

On 13 November 1997, KRMG-NY filed the Business Certificate for Partners with the Office of the Clerk of the County of Rockland. See Business Certificate for Partners; Kurtzman R. 12(b)(1) Aff. at ¶ 3. On 14 November 1997, KRMG-NY filed a Certificate of Registration with the Secretary of State of the State of New York. See Certificate of Registration; Kurtzman R. 12(b)(1) Aff. at ¶ 4.*fn3

The Certificate of Registration states, in relevant part:

  [t]he name of the registered limited liability
  partnership is: Kurtzman, Resnik, Matera & Gurock,
  LLP. . . . The profession to be practiced by the
  partnership is the practice of law. The partnership
  is eligible to register as a registered limited
  liability partnership, pursuant to Section
  121-1500(a) of the New York Revised Limited
  Partnership Act. The Secretary of State is designated
  as the agent of the partnership upon whom process
  against the partnership may be served. . . . The
  Partnership hereby is filing a registration for
  status as a registered limited liability
  partnership.

Certificate of Registration (emphasis added); see also Kurtzman R. 12(b)(1) Aff. at ¶ 4.

The Business Certificate for Partners also evidences the partnership status of KRMG-NY: "The undersigned [Kurtzman, Resnik, Matera and Gurock] do hereby certify that they are conducting or transacting business as members of a partnership under the name or designation of Kurtzman, Resnik, Matera and Gurock. . . .". Business Certificate for Partners.

Additionally, an endorsement (the "Change Endorsement") was added to the professional liability insurance policy of KRMG-NY. See Kurtzman R. 12(b)(1) Reply Aff. at ¶ 5; Change Endorsement, attached as Exhibit A to Kurtzman Reply R. 12(b)(1) Reply Aff. The Change Endorsement, dated 27 January 1998, reads, in pertinent part:

  THIS ENDORSEMENT CHANGES THE [LIABILITY INSURANCE]
  POLICY. PLEASE READ IT CAREFULLY. In consideration of
  the return premium it is hereby agreed that: . . .
  Item 1 of the Declarations page Named Insured is
  amended to read: Kurtzman, Resnik, Matera & Gurock,
  LLP. . . . Item 3 of the Declarations page Form of
  the New Insured's Business is amended to Partnership.

See Change Endorsement. The Certificate of Registration, the Business Certificate for Partners and the Change Endorsement, all submitted by the Defendants, indicate KRMG-NY is a New York Limited Liability Partnership.

In the Complaint, Cohen alleges KRMG-NY is "organized and existing as a partnership and/or other unincorporated entity of the State of New York." See Complaint at ¶ 12; see also id. at ¶ 11 ("KRMG[-NY] was and is organized and existing as a general partnership of the State of New York. . . ."). Cohen also alleges Kurtzman is a general partner and the managing partner of KRMG-NY. See id. at ¶¶ 16, 17.*fn4 Cohen further alleges "on or about December 1, 1997 defendant KRMG-NY assumed, obtained and/or otherwise acquired assets and liabilities of defendant KCMG-NY."

Id. at ¶ 15.

It appears from the Complaint Cohen resides in New Jersey. See Complaint at ¶ 4. It appears from the Business Certificate for Partners, Kurtzman, Resnik and Gurock all reside in New York, while Matera resides in Bergen County, New Jersey. See Business Certificate for Partners; Kurtzman R. 12(b)(1) Aff. at ¶ 3; Matera R. 12(b)(1) Aff. at ¶ 3.

According to Matera, Cohen was personally aware she resides in New Jersey. See Matera R. 12(b)(1) Aff. at ¶ 4. She specifically alleges Cohen picked her up at her home in Bergen County, New Jersey at the start of a business trip before he left KCMG-NY. See id. Matera states she and Cohen had "countless discussions concerning the owning of a home in Bergen County New Jersey [sic]." Id. Matera also states Cohen knew of her intention to remain in New Jersey, and even referred her name to a real estate agent whose territory encompasses Bergen County. Id. at ¶ 5.

B. Procedural History

As mentioned, Cohen filed the Complaint on 16 June 1998. See Complaint. On 14 July 1998, the Defendants requested, and were granted, an extension of time in which to answer the Complaint. By letter, dated 20 July 1998, (the "20 July 1998 Letter") the Defendants placed Cohen on notice of the jurisdictional deficiencies of the Complaint. See 20 July 1998 Letter, attached as Exhibit B to Eberle R. 12(b)(1) Decl. The 20 July 1998 Letter also alerted Cohen of the intention of the Defendants to move for sanctions pursuant to Rule 11 if Cohen did not withdraw the Complaint. See id. Cohen responded in a letter, dated 23 July 1998, (the "23 July 1998 Letter") asserting, inter alia, his belief that the partnership status of KRMG-NY is a "sham" and requesting further discovery on the issue. See 23 July 1998 Letter at 2.

The Defendants filed the Motion to Dismiss on 9 September 1998. On the same date, the Defendants filed the Motion for Sanctions.

Discussion

A. Standard of Review Under Rule 12(b)(1)

A challenge to the subject matter jurisdiction of a Federal court pursuant to Rule 12(b)(1) differs from an attack on the merits under Fed.R.Civ.P. 12(b)(6) ("Rule 12(b)(6)") or Fed.R.Civ.P. 56 ("Rule 56"). See Robinson v. Dalton, 107 F.3d 1018, 1021 (3d Cir. 1997); Boyle v. Governor's Veterans Outreach & Assistance Ctr., 925 F.2d 71, 74 (3d Cir. 1991); Mortensen v. First Federal Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977); Martinez v. United States Post Office, 875 F. Supp. 1067, 1070 (D.N.J. 1995); Biase v. Kaplan, 852 F. Supp. 268, 276 (D.N.J. 1994).

Rule 12(b)(1) does not afford a plaintiff all the procedural safeguards provided by Rule 12(b)(6) and Rule 56. See Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir.), cert. denied, 501 U.S. 1222, 111 S.Ct. 2839, 115 L.Ed.2d 1007 (1991); Boyle, 925 F.2d at 74-75; Martinez, 875 F. Supp. at 1070; Biase, 852 F. Supp. at 276. Rule 12(b)(1) attacks instead the right of a plaintiff to be heard in Federal court.

There are two types of Rule 12(b)(1) motions, those which "attack the complaint on its face" and those which "attack the existence of subject matter jurisdiction in fact, quite apart from any pleading." Mortensen, 549 F.2d at 891; Martinez, 875 F. Supp. at 1070; Biase, 852 F. Supp. at 276; Schwartz v. Medicare, 832 F. Supp. 782, 787 (D.N.J. 1993); Donio v. United States, 746 F. Supp. 500, 504 (D.N.J. 1990). The facial attack offers a safeguard to the plaintiff similar to that of a Rule 12(b)(6) motion; the allegations of the complaint are taken as true. Mortensen, 549 F.2d at 891; Martinez, 875 F. Supp. at 1070.

For a Rule 12(b)(1) motion addressing the existence of subject matter jurisdiction, however, no presumptive truthfulness attaches to the allegations of a plaintiff. See United States ex rel. Dunleavy v. County of Delaware, 123 F.3d 734, 736 n. 2 (3d Cir. 1997); Gotha v. United States, 115 F.3d 176, 178 (3d Cir. 1997); Robinson, 107 F.3d at 1021 (citing Mortensen, 549 F.2d at 891); Growth Horizons, Inc. v. Delaware County, Pa., 983 F.2d 1277, 1280 n. 4 (3d Cir. 1993); Boyle, 925 F.2d at 74-75; Martinez, 875 F. Supp. at 1070. Consideration of a Rule 12(b)(1) jurisdiction-type motion need not be so limited. Conflicting written and oral evidence may be considered and a court may "decide for itself the factual issues which determine jurisdiction." Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981); see County of Delaware, 123 F.3d at 736 n. 2; Gotha, 115 F.3d at 178; Growth Horizons, 983 F.2d at 1280 n. 4; Boyle, 925 F.2d at 74-75; Martinez, 875 F. Supp. at 1070-71; Biase, 852 F. Supp. at 277. This type of a Rule 12(b)(1) motion need not be converted into a Rule 56 motion when extra pleading materials are considered. Robinson, 107 F.3d at 1021 (citing Mortensen, 549 F.2d at 891); Armstrong World Indus., Inc. v. Adams, 961 F.2d 405, 410 n. 10 (3d Cir. 1992); Williamson, 645 F.2d at 416; Martinez, 875 F. Supp. at 1070; Biase, 852 F. Supp. at 277.

Although motions pursuant to Rule 12(b)(1) and Rule 12(b)(6) are distinct, jurisdictional issues oftentimes are intertwined with the merits of a case. "`Where an attack on jurisdiction implicates the merits of a plaintiff's [F]ederal cause of action, the district court's role in judging the facts may be more limited. . . .'" Martinez, 875 F. Supp. at 1071 (quoting Williamson, 645 F.2d at 413 n. 6).

  Where the defendant's challenge to the court's
  jurisdiction is also a challenge to the existence of
  a[F]ederal cause of action, the proper course of
  action for the district court (assuming that the
  plaintiff's [F]ederal claim is not immaterial and
  made solely for the purpose of obtaining [F]ederal
  jurisdiction and is not insubstantial and frivolous)
  is to find that jurisdiction exists and to deal with

  the objection as a direct attack on the merits of the
  plaintiff's case.

Williamson, 645 F.2d at 415 (citing Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 90 L.Ed. 939 (1946)). As further explained in Williamson, however, "a jurisdictional attack which does not implicate the merits of any [F]ederal cause of action is not bound by [this] . . . standard." 645 F.2d at 415 n. 9.

As discussed below, moreover, a jurisdictional attack pursuant to Rule 12(b)(1) carries with it different burdens than an attack on the merits. "[W]hen subject matter jurisdiction is challenged under Rule 12(b)(1), the plaintiff must bear the burden of persuasion." Kehr Packages, 926 F.2d at 1409; see Dayhoff, Inc. v. H.J. Heinz Co., 86 F.3d 1287, 1302 (3d Cir.), cert. denied, 519 U.S. 1028, 117 S.Ct. 583, 136 L.Ed.2d 513 (1996); Mortensen, 549 F.2d at 891. Under Rule 12(b)(6), by contrast, the defendant bears the burden of demonstrating the plaintiff has not stated a claim. Kehr Packages, 926 F.2d at 1409 (citing Johnsrud v. Carter, 620 F.2d 29, 33 (3d Cir. 1980)) (contrasting the burdens under Rule 12(b)(1) and Rule 12(b)(6)).

The instant Motion to Dismiss challenges the existence of subject matter jurisdiction. As such, the Motion to Dismiss does not address the merits of the case. Accordingly, no presumption of truthfulness attaches to the allegations set forth in the Complaint. See County of Delaware, 123 F.3d at 736 n. 2 (3d Cir. 1997); Gotha, 115 F.3d at 178; Robinson, 107 F.3d at 1021 (citing Mortensen, 549 F.2d at 891); Martinez, 875 F. Supp. at 1070.

B. Subject Matter Jurisdiction

Federal courts have limited jurisdiction and are permitted to adjudicate cases and controversies only as permitted under Article III of the Constitution. See U.S. Const. art. III, § 2; see also Philadelphia Federation of Teachers v. Ridge, 150 F.3d 319, 323 (3d Cir. 1998); Travelers Ins. Co. v. Obusek, 72 F.3d 1148, 1153 (3d Cir. 1995); Rice v. United States, Dep't of Alcohol, Tobacco and Firearms, 68 F.3d 702, 706 (3d Cir. 1995); Presbytery of New Jersey v. Florio, 40 F.3d 1454, 1462 (3d Cir. 1994); Reich v. Local 30, Int'l Bhd. of Teamsters, 6 F.3d 978, 981 n. 5 (3d Cir. 1993); 1st Westco Corp. v. Sch. Dist. of Phila., 6 F.3d 108, 112-13 (3d Cir. 1993) (citing Golden v. Zwickler, 394 U.S. 103, 108, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969)); TM Marketing, Inc. v. Art & Antiques Assocs., L.P., 803 F. Supp. 994, 996 (D.N.J. 1992) (citing New Orleans Pub. Serv. Inc. v. Council of New Orleans, 491 U.S. 350, 359, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989)). Unless affirmatively demonstrated, a Federal court is presumed to lack subject matter jurisdiction. See Ridge, 150 F.3d at 323 (citing Renne v. Geary, 501 U.S. 312, 316, 111 S.Ct. 2331, 115 L.Ed.2d 288 (1991)); Presbytery of New Jersey, 40 F.3d at 1462 (quoting Renne, 501 U.S. at 316, 111 S.Ct. 2331 and Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986)); TM Marketing, 803 F. Supp. at 996.

A Federal court has broad power to decide whether it has jurisdiction to hear a case and may make factual findings which are decisive to the issue of jurisdiction. See Employers Ins. of Wausau v. Crown Cork & Seal Co., 905 F.2d 42, 45 (3d Cir. 1990); Williamson, 645 F.2d at 413; Martinez, 875 F. Supp. at 1071; Biase, 852 F. Supp. at 277. It must be determined whether jurisdiction exists before proceeding to the merits of a case. Presbytery of New Jersey, 40 F.3d at 1461; Packard v. Provident Nat. Bank, 994 F.2d 1039, 1049 (3d Cir.), cert. denied sub nom., 510 U.S. 964, 114 S.Ct. 440, 126 L.Ed.2d 373 (1993); Employers Ins. of Wausau, 905 F.2d at 45 (citing Bender, 475 U.S. at 541, 106 S.Ct. 1326); TM Marketing, 803 F. Supp. at 997.

As mentioned, the burden of demonstrating the existence of Federal jurisdiction is on the party seeking to invoke it. See Development Finance Corp. v. Alpha Housing & Health Care, Inc., 54 F.3d 156, 158 (3d Cir. 1995); Kehr Packages, 926 F.2d at 1409; Mortensen, 549 F.2d at 891; Martinez, 875 F. Supp. at 1071; Biase, 852 F. Supp. at 277. The party seeking to invoke Federal jurisdiction must proffer "affidavits or other competent evidence [indicating] that jurisdiction is proper." Dayhoff, 86 F.3d at 1302; see North Penn Gas Co. v. Corning Natural Gas Corp., 897 F.2d 687, 689 (3d. Cir.), cert. denied, 498 U.S. 847, 111 S.Ct. 133, 112 L.Ed.2d 101 (1990).

Generally, Federal subject matter jurisdiction rests upon a Constitutional or statutory grant pursuant to 28 U.S.C. § 1331 and diversity pursuant to 28 U.S.C. § 1332(a). See Erienet, Inc. v. Velocity Net, Inc., 156 F.3d 513, 515 (3d Cir. 1998); Clinton County Comm'rs v. United States Envtl. Protection Agency, 116 F.3d 1018, 1021 (3d Cir. 1997), cert. denied, ___ U.S. ___, 118 S.Ct. 687, 139 L.Ed.2d 633 (1998); Employers Ins. of Wausau, 905 F.2d at 45; TM Marketing, 803 F. Supp. at 997. The Complaint in the instant matter asserts only diversity jurisdiction. See Complaint at ¶ 2.

Where diversity jurisdiction is alleged, Section 1332(a)(1) "must be narrowly construed so as not to frustrate the Congressional purpose behind it: to keep the diversity caseload of the [F]ederal courts under some modicum of control." Packard, 994 F.2d at 1044-45.

C. Diversity Jurisdiction Under Section 1332(a)(1)

The Federal courts have original jurisdiction over cases in which complete diversity exists, pursuant to Section 1332(a).*fn5 See Caterpillar Inc. v. Lewis, 519 U.S. 61, 67-68, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996); Carden v. Arkoma Assoc., 494 U.S. 185, 187, 110 S.Ct. 1015, 108 L.Ed.2d 157 (1990) (citing Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806)); Development Finance Corp., 54 F.3d at 158; Singh v. Daimler-Benz AG, 9 F.3d 303, 305 (3d Cir. 1993). Complete diversity exists when the parties "on one side of the controversy are citizens of different states from all the parties on the other side." Northbrook Nat'l Fire Ins. Co. v. Brewer, 493 U.S. 6, 18 n. 5, 110 S.Ct. 297, 107 L.Ed.2d 223 (1989); see Caterpillar, 519 U.S. at 68 & n. 3, 117 S.Ct. 467; Indianapolis v. Chase Nat'l Bk., 314 U.S. 63, 69, 62 S.Ct. 15, 86 L.Ed. 47, reh'g denied, 314 U.S. 714, 62 S.Ct. 355, 356, 86 L.Ed. 569 (1941); Midlantic Nat'l Bank v. Hansen, 48 F.3d 693, 696 (3d Cir.), cert. dismissed, 515 U.S. 1184, 116 S.Ct. 32, 132 L.Ed.2d 914 (1995); Employers Ins. of Wausau, 905 F.2d at 45; see also 28 U.S.C. § 1332(a).

A determination by the parties of their alignment cannot confer jurisdiction upon the court. See Employers Ins. of Wausau, 905 F.2d at 45; TM Marketing, 803 F. Supp. at 1000 n. 12. Although the pleadings are relevant, it is the duty of the court to "look beyond the pleadings and arrange the parties according to their sides." Employers Ins. of Wausau, 905 F.2d at 45 (quoting Dawson v. Columbia Ave. Sav. Fund, 197 U.S. 178, 180, 25 S.Ct. 420, 49 L.Ed. 713 (1905)); see TM Marketing, 803 F. Supp. at 1000 n. 12.

In cases in which a corporation is a party, the corporation is deemed a citizen of two states: the state of its incorporation and the state of its principal place of business. 28 U.S.C. § 1332(c)(1); see United Steelworkers of Am. v. R.H. Bouligny, Inc., 382 U.S. 145, 152, 86 S.Ct. 272, 15 L.Ed.2d 217 (1965); Mennen Co. v. Atlantic Mut. Ins. Co., 147 F.3d 287 (3d Cir. 1998); Hansen, 48 F.3d at 696; Murray v. Commercial Union Ins. Co., 782 F.2d 432, 433 (3d Cir. 1986); TM Marketing, 803 F. Supp. at 1000.

In contrast, a partnership is deemed to be a citizen of each state in which any one of its partners is domiciled. Carden, 494 U.S. at 194-95, 110 S.Ct. 1015; Great So. Fire Proof Hotel Co. v. Jones, 177 U.S. 449, 456, 20 S.Ct. 690, 44 L.Ed. 842 (1900); HB General Corp. v. Manchester Partners, L.P., 95 F.3d 1185, 1190 (3d Cir. 1996); Knop v. McMahan, 872 F.2d 1132, 1137 n. 11 (3d Cir. 1989); TM Marketing, 803 F. Supp. at 1000. In Carden, the Supreme Court reaffirmed this rule when it held diversity determinations cannot be based solely on the citizenship of general partners, but must consider the citizenship of limited partners as well.*fn6 494 U.S. at 194-95, 110 S.Ct. 1015.

The two Federal courts which have specifically addressed diversity of limited liability partnerships, moreover, have held a limited liability partnership is a citizen of every state in which one of its partners resides. See Mudge Rose Guthrie Alexander & Ferdon v. Pickett, 11 F. Supp.2d 449, 451 (S.D.N Y 1998); Reisman v. KPMG Peat Marwick LLP, 965 F. Supp. 165, 176 (D.Mass. 1997) (citing and applying Carden, 494 U.S. at 191, 110 S.Ct. 1015). In analyzing diversity, the court in Pickett looked to New York Partnership Law. The court observed:

  The New York Partnership Law expressly defines
  `partnership' to include [New York limited liability
  partnerships] and defines a[] [New York limited
  liability partnership] as a `partnership.' Thus, the
  explicit language of the statute creating this new
  form of business organization, to whatever extent it
  is relevant to the determination of the federal
  issue, indicates that [the New York limited liability
  partnership] should be characterized as a partnership
  for diversity of citizenship purposes.

Pickett, 11 F. Supp.2d at 451 & n. 7 (citing N.Y. Partnership L. §§ 2, 10).

In the instant case, Cohen alleges complete diversity of citizenship exists. See Complaint at ¶¶ 2. Cohen specifically alleges he is a resident of New Jersey. See id. at ¶ 4. He alleges KCMG-NY is a sole proprietorship organized and existing under the laws of New York, with its principal place of business in New York. See id. at ¶¶ 8, 9. Cohen further alleges Kurtzman, the sole proprietor of KCMG-NY, is a resident of New York. See id. at ¶¶ 6, 10. The Complaint, however, does not indicate the residency of Matera, Gurock or Resnik, who, along with Kurtzman, are partners of KRMG-NY. See id.

The allegations of the Complaint notwithstanding, complete diversity does not exist in this action. The parties do not dispute Cohen is domiciled in New Jersey, while Kurtzman is domiciled in New York. The parties also do not dispute KCMG-NY, the predecessor of KRMG-NY, was a sole proprietorship, with its principal place of business in New York. See Kurtzman R. 12(b)(1) Reply Aff. at ¶ 2; Rule 12(b)(1) Reply Brief at 4. The present dispute concerns the characterization of KRMG-NY, which, as discussed below, implicates the "complete diversity" analysis.

In opposition to the Motion to Dismiss, Cohen argues the "Partnership Registration is a sham and part of a fraud now being perpetrated upon this Honorable Court, and that in fact and substance defendant KRMG-NY is a sole proprietorship owned by Mr. Kurtzman." Rule 12(b)(1) Opposition Brief at 8. In this regard, Cohen states:

  [S]upporting my belief that defendant KRMG-NY is a
  sole proprietorship of the State of New York, and is
  not the limited liability partnership as alleged by
  defendants, . . . is the fact that Mr. Kurtzman in
  his New York law operations has a history of forming
  and operating his law practice as a sole
  proprietorship in substance and in fact, but then
  marketing and holding his practice out to the public
  as a law partnership.

Cohen R. 12(b)(1) Aff. at ¶ 10 (emphasis in original).

As stated, a party seeking to invoke Federal jurisdiction must proffer "affidavits or other competent evidence [indicating] that jurisdiction is proper." Dayhoff, 86 F.3d at 1302; see North Penn Gas Co., 897 F.2d at 689. Rule 7.2 of the Local Civil Rules of the District of New Jersey ("Rule 7.2") restricts statements in affidavits to "facts within the personal knowledge of the affiant." L.Civ.R. 7.2(a). Statements which constitute the opinion or belief of the affiant, or matters outside the personal knowledge of the affiant, are not "competent" evidence. See Resolution Trust Co. v. Fidelity & Deposit Co., 1998 U.S. Dist. LEXIS 3431 (D.N.J. 27 Jan. 1998) (citing L.Civ.R. 7.2(a)) (disregarding statements in affidavit which constituted opinion or matters outside personal knowledge); Assisted Living Assocs. of Moorestown, L.L.C. v. Moorestown Township, 996 F. Supp. 409, 443 (D.N.J. 1998) (giving "little, if any, credence" to affidavit which was "self-serving," in violation of Rule 7.2(a)); Dell'Aguila v. Riverbank America, No. 92-3271 (D.N.J. slip op. filed 16 Apr. 1993) (striking portions of counsel affidavit which were conclusory and did not affirmatively demonstrate personal knowledge of certain testimonial facts).

The Cohen R. 12(b)(1) Affidavit constitutes mainly unsubstantiated conjecture concerning the status of KRMG-NY and Kurtzman. Cohen does not, and it appears he cannot, point to any competent evidence to corroborate his allegations.

The overwhelming evidence proffered by the Defendants, however, firmly establishes KRMG-NY is a New York limited liability partnership. As indicated, the Certificate of Registration, filed with the New York Secretary of State on 14 November 1997, unequivocally states:

  [t]he name of the registered limited liability
  partnership is: Kurtzman, Resnik, Matera & Gurock,
  LLP. . . . The profession to be practiced by the
  partnership is the practice of law. The partnership
  is eligible to register as a registered limited
  liability partnership, pursuant to Section
  121-1500(a) of the New York Revised Limited
  Partnership Act. The Secretary of State is designated
  as the agent of the partnership upon whom process
  against the partnership may be served. . . . The
  partnership hereby is filing a registration for
  status as a registered limited liability
  partnership.

See Certificate of Registration (emphasis added). Additionally, the Business Certificate for Partners, signed by Kurtzman, Resnik, Matera and Gurock and filed with the Office of the Clerk of the County of Rockland on 13 November 1998, evidences the partnership status of KRMG-NY. See Business Certificate for Partners ("The undersigned do hereby certify that they are conducting or transacting business as members of a partnership under the name designation of Kurtzman, Resnik, Matera & Gurock."). The Certificate of Registration and the Business Certificate for Partners both were filed more than seven months before Cohen filed the Complaint.

It appears, moreover, from the Change Endorsement, effective 1 January 1998, the named insured was amended to read "Kurtzman, Resnik, Matera & Gurock, LLP," and "Item 3 of the Declarations page Form of New Insured's Business is amended to Partnership." See Change Endorsement; see also Kurtzman R. 12(b)(1) Reply Aff. at ¶ 5.

The statements of Alan Feldstein ("Feldstein"), the accountant to both KCMG-NY and KRMG-NY, are not to the contrary. Significantly, Feldstein states KRMG-NY is a partnership, which, for tax purposes, did not become effective until January 1998. See Feldstein R. 12(b)(1) Aff. at ¶¶ 3, 4.

Cohen argues the mere existence of the Certificate of Registration does not, in itself, conclusively establish a partnership. See Rule 12(b)(1) Opposition Brief at 9. Cohen cites to the New York Partnership Law as evidence that partnership status does not depend exclusively upon registration as a partnership. Under New York Partnership Law, the definition of "partnership" expressly includes limited liability partnerships. Specifically, New York Partnership Law § 10 ("Section 10") provides: "A partnership is an association of two or more persons to carry on as coowners a business for profit and includes for all purposes of the laws of this state, a registered limited liability partnership." See N.Y. Partnership L. § 10 (emphasis in original); see also Pickett, 11 F. Supp.2d at 451 & n. 7 (observing "partnership" under New York Partnership Law § 10 includes limited liability partnerships).

As discussed, the burden of demonstrating the existence of Federal jurisdiction is on the party seeking to invoke it. See Dayhoff, 86 F.3d at 1302; Kehr Packages, 926 F.2d at 1409; Mortensen, 549 F.2d at 891; Martinez, 875 F. Supp. at 1071; Biase, 852 F. Supp. at 277. Cohen, however, offers no evidence demonstrating Kurtzman, Matera, Gurock or Resnik do not carry on as a limited liability partnership, as defined in Section 10 of the New York Partnership Law.

The Defendants, by contrast, submitted not only the Certificate of Registration and the Business Certificate for Partners, but also the Change Endorsement and the Feldstein Affidavit, all of which demonstrate that KRMG-NY carries on as a partnership. Feldstein expressly bases his determination of limited liability partnership status on a "review of the books and records of KRMG-NY." See Feldstein R. 12(b)(1) Aff. at ¶ 3. He also states: "[a]ll of the partners of KRMG-NY . . . will receive K-1 statements [for partnership filings] at the end of the tax year 1998." Id. at ¶ 6. Accordingly, it appears that for tax purposes as well, KRMG-NY is organized, treated and conducted as a limited liability partnership.

In light of the substantial evidence submitted by the Defendants, and the unsubstantiated allegations of Cohen, the contention of Cohen that further discovery is required before determining the existence of subject matter jurisdiction is unavailing. See Zuk v. Eastern Pa. Psychiatric Institute, 103 F.3d 294, 299 (3d Cir. 1996) ("[D]iscovery is not intended as a fishing expedition permitting the speculative pleading of a case first and then pursuing discovery to support it; the plaintiff must have some basis in fact for the action.").

Because KRMG-NY is a limited liability partnership, its citizenship for diversity purposes must be measured by the citizenship of its partners. Even though KRMG-NY is a New York partnership, one of its partners, Matera, is domiciled in New Jersey. See Matera R. 12(b)(1) Aff. at ¶¶ 2-3. It appears Cohen is, and was, aware of the residency of Matera and of her intention to stay in Bergen County. See id. at ¶¶ 4-6. Cohen did not proffer any competent evidence indicating otherwise.

Both Cohen and Matera are New Jersey citizens. Consequently, complete diversity is lacking. As stated, further discovery into the partnership status of KRMG-NY is unnecessary. The evidence proffered by the Defendants, namely, the Business Certificate for Partners, the Certificate of Registration, the Change Endorsement, the Feldstein Affidavit and the Matera Affidavit are dispositive of this issue. This action cannot be maintained in Federal court pursuant to the jurisdictional grant in Section 1332(a).

Cohen argues even if Matera destroys complete diversity among the parties, he intends to amend the Complaint to delete KRMG-NY as a party defendant so as to maintain subject matter jurisdiction. Cohen argues: "Defendant Kurtzman and defendant KCMG-NY are clearly the target defendants and chief wrongdoers in this case, complete diversity of citizenship exists between plaintiff and these defendants, and it is submitted that complete relief can be obtained in the absence of defendant KRMG-NY." See Rule 12(b)(1) Opposition Brief at 13-14. This argument is without merit because, as Cohen admits, KCMG-NY no longer exists. In the Complaint, Cohen alleges, "on or about December 1, 1997, defendant KRMG-NY assumed, obtained and/or otherwise acquired assets and liabilities of defendant KCMG-NY." Complaint at ¶ 15. Additionally, Feldstein, the accountant for both KCMG-NY and KRMG-NY, states that KCMG-NY folded its assets into KRMG-NY following its dissolution in November 1997. See Feldstein R. 12(b)(1) Aff. at ¶ 5.

KRMG-NY, as the successor to KCMG-NY, is indisputably a necessary and indispensable party to the litigation. See Fed. R.Civ.P. 19.*fn7 As Cohen and Feldstein both recognize, it is not possible for Cohen to obtain money damages or an accounting from KCMG-NY, which, as discussed, is no longer in existence. It also appears when KRMG-NY assumed the liabilities and assets of KCMG-NY, KRMG-NY necessarily assumed any partnership agreement or employment contract Cohen had with KCMG-NY. In the absence of KRMG-NY, therefore, it appears complete relief cannot be accorded. See Fed. R.Civ.P. 19(a); Angst v. Royal Maccabees Life Ins. Co., 77 F.3d 701, 705 (3d Cir. 1996).

Cohen cannot escape the complete diversity requirement of Section 1332(a) by amending the Complaint to delete KRMG-NY. The Motion to Dismiss the Complaint is granted.

D. Standard for Imposing Sanctions Under Rule 11

As mentioned, in addition to the Motion to Dismiss, the Defendants also separately filed the Motion for Sanctions against Cohen and his counsel, Geoffrey Eberle, Esq. ("Eberle") pursuant to Rule 11.

Rule 11 was amended in 1983 to give courts greater authority to impose sanctions in order to discourage wasteful and abusive tactics.*fn8 See Business Guides, Inc. v. Chromatic Communications Enters., Inc., 498 U.S. 533, 542, 111 S.Ct. 922, 112 L.Ed.2d 1140 (1991); Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990); Lieb v. Topstone Indus., Inc., 788 F.2d 151, 157 (3d Cir. 1986); Miller v. Beneficial Mgmt. Corp., 844 F. Supp. 990, 1005 (D.N.J. 1993). Rule 11 provides another exception to the traditional American rule requiring each litigant to bear its own costs and attorneys' fees. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975); Quiroga v. Hasbro, Inc., 934 F.2d 497, 504 (3d Cir.), cert. denied, 502 U.S. 940, 112 S.Ct. 376, 116 L.Ed.2d 327 (1991); Doering v. Union County Bd. of Chosen Freeholders, 857 F.2d 191, 193 (3d Cir. 1988); Gaiardo v. Ethyl Corp., 835 F.2d 479, 483 (3d Cir. 1987); Miller, 844 F. Supp. at 1005. The primary purpose in providing for an award of attorneys' fees, however, is not "wholesale fee shifting but correction of litigation abuse." Gaiardo, 835 F.2d at 483; Quiroga, 934 F.2d at 504; Miller, 844 F. Supp. at 1005.

Consequently, sanctions are appropriate when the "`claim or motion is patently unmeritorious or frivolous.'" Dura Systems, Inc. v. Rothbury Invest., Ltd., 886 F.2d 551, 556 (3d Cir. 1989) (quoting Doering, 857 F.2d at 194), cert. denied, 493 U.S. 1046, 110 S.Ct. 844, 107 L.Ed.2d 838 (1990); see also Landon v. Hunt, 938 F.2d 450, 452 (3d Cir. 1991); Napier v. Thirty or More Unidentified Fed. Agents, 855 F.2d 1080, 1091 (3d Cir. 1988); Downey v. United Food & Commercial Workers Union Local 1262, 946 F. Supp. 1141, 1160 (D.N.J. 1996); Miller, 844 F. Supp. at 1006; Princeton Economics Group, Inc. v. AT & T, 768 F. Supp. 1101, 1116 (D.N.J. 1991). Where an abuse of litigation or misuse of the judicial system is found, Rule 11 sanctions are appropriate against the signer of the document, be it the attorney or the party. Business Guides, 498 U.S. at 543-46, 111 S.Ct. 922; Simmerman v. Corino, 27 F.3d 58, 62 (3d Cir. 1994) (citing Teamsters Local Union No. 430 v. Cement Express, Inc., 841 F.2d 66, 68 (3d Cir.), cert. denied sub nom., Herman Bros., Inc. v. Teamsters Local Union No. 430, 488 U.S. 848, 109 S.Ct. 128, 102 L.Ed.2d 101 (1988)); Downey, 946 F. Supp. at 1160.

Rule 11 places a duty on the signer of the document to "make an inquiry into both the facts and the law which is reasonable under the circumstances." Zuk, 103 F.3d at 299 (quoting Rule 11 Advisory Committee Note); see Clinton v. Jones, 520 U.S. 681, 709 n. 42, 117 S.Ct. 1636, 137 L.Ed.2d 945 (1997) (quoting Rule 11(b)(1), (3)) (sanctions appropriate where allegations "`lack[] evidentiary support' or [are] unlikely to prove well grounded after reasonable investigation"); Bensalem Township v. Int'l Surplus Lines Ins. Co., 38 F.3d 1303, 1314 (3d Cir. 1994) ("Rule [11] imposes an affirmative duty on the parties to conduct a reasonable inquiry into the applicable law and facts prior to filing."); Bradgate Assocs., Inc. v. Fellows, Read & Assocs., Inc., 999 F.2d 745, 751 (3d Cir. 1993) (citing Business Guides, 498 U.S. at 543, 111 S.Ct. 922) (same); Schering Corp. v. Vitarine Pharmaceuticals, Inc., 889 F.2d 490, 496 (3d Cir. 1989) (same).

In deciding a motion for sanctions under Rule 11, a court must apply an objective standard of reasonableness under the circumstances existing at the time the document was submitted. Chambers v. NASCO, Inc., 501 U.S. 32, 47, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991), reh'g denied, 501 U.S. 1269, 112 S.Ct. 12, 115 L.Ed.2d 1097 (1991); Business Guides, 498 U.S. at 548, 111 S.Ct. 922; Eavenson, Auchmuty & Greenwald v. Holtzman, 775 F.2d 535, 541 (3d Cir. 1985); Downey, 946 F. Supp. at 1160; Miller, 844 F. Supp. at 1006. This is "a more stringent standard than the original good faith formula." Eavenson, 775 F.2d at 540; see Miller, 844 F. Supp. at 1006. No proof of subjective bad faith is required to levy sanctions. See Martin v. Brown, 63 F.3d 1252, 1264 (3d Cir. 1995) (citations omitted); Napier, 855 F.2d at 1091; Downey, 946 F. Supp. at 1160.

"The court must evaluate the signer's conduct `by inquiring what was reasonable to believe at the time the pleading, motion, or other paper was submitted,' an evaluation which should depend on a variety of factors, including `whether the pleading, motion, or other paper was based on a plausible view of the law.'" Dura Systems, 886 F.2d at 556 (quoting Rule 11 Advisory Committee Note). Under this standard, "[l]itigants misuse the Rule when sanctions are sought against a party or counsel whose only sin was being on the unsuccessful side of a ruling or judgment." Gaiardo, 835 F.2d at 483; see Miller, 844 F. Supp. at 990.

Applying these principles to the instant case, it appears the exceptional circumstances warranting the imposition of sanctions are present. The Complaint is signed by Cohen and his counsel, Eberle. The Complaint alleges, inter alia, "there exists complete diversity of citizenship between the plaintiff and all defendants. . . ." Complaint at ¶ 2. It appears, however, neither Cohen nor Eberle conducted even a cursory investigation into the status of KRMG-NY as a limited liability partnership. As mentioned, the Certificate of Registration and the Business Certificate for Partners were filed approximately seven months before Cohen filed the Complaint. The partnership status of KRMG-NY would have been easily uncovered had Cohen or Eberle directed an inquiry to the Office of the Clerk of Rockland County or the New York Secretary of State.

It also appears Cohen and Eberle did not conduct an investigation into the domicile of the individual partners. The Business Certificate for Partners includes the names and addresses of each partner of KRMG-NY. See Business Certificate for Partners. The address of one of the partners, Matera, is clearly listed as New Jersey. See id.

The failure of Cohen and Eberle to review the Business Certificate for Partners notwithstanding, it appears from the Matera Affidavit, Cohen was personally aware Matera resided in New Jersey at the time he filed the Complaint. See Matera R. 12(b)(1) Aff. at ¶ 4. Matera states Cohen previously had picked her up at her home in Bergen County, New Jersey, at the start of a business trip, and they had engaged in "countless discussions concerning the owning of a home in Bergen County New Jersey [sic]." Id. Matera also states Cohen knew of her intention to remain in New Jersey, and even referred her name to a real estate agent whose territory encompasses Bergen County. Id. at ¶ 5.

It appears, moreover, as the Defendants point out, "[Cohen] and his counsel clearly failed to perform even a modicum of legal research into diversity jurisdiction as it relates to the naming of a partnership as a party to an action." See Sanctions Moving Brief at 10. As discussed, it is axiomatic that to determine diversity jurisdiction of a partnership, the domicile of each partner must be considered. See, e.g., Carden, 494 U.S. at 194-95, 110 S.Ct. 1015; Jones, 177 U.S. at 456, 20 S.Ct. 690; HB General Corp., 95 F.3d at 1190; Knop, 872 F.2d at 1137 n. 11; TM Marketing, 803 F. Supp. at 1000.

Additionally, the Defendants wrote a letter to Cohen immediately following the filing of the Complaint. See 20 July 1998 Letter. The 20 July 1998 Letter placed Cohen on notice of the jurisdictional deficiencies of the Complaint and afforded Cohen the chance to withdraw the Complaint before the Defendants moved for sanctions. See id. The Defendants also included with their correspondence a copy of the Certificate of Registration.

Cohen chose not to withdraw the Complaint, responding instead by reasserting his belief that KRMG-NY was not a limited liability partnership. See 23 July 1998 Letter. In the 23 July 1998 Letter, signed by Eberle, Eberle stated the true status of KRMG-NY could only be evaluated upon further discovery on key factual issues relating to diversity of citizenship. See id. In this connection, counsel for Cohen requested the disclosure of income tax returns and K-1 partnership filings, agreements relating to the formation and operation KRMG-NY and additional depositions. See id. It also appears Eberle spoke with defense counsel and urged them to temporarily forego filing the Motion to Dismiss pending further investigation by Cohen and Eberle into the status of KRMG-NY. See Eberle Sanctions Decl. at ¶¶ 13, 14.

As mentioned, this Circuit, in construing Advisory Committee Notes to the 1993 amendments to Rule 11, has stated: "[D]iscovery is not intended as a fishing expedition permitting the speculative pleading of a case first and then pursuing discovery to support it; the plaintiff must have some basis in fact for the action." Zuk, 103 F.3d at 299. "The signature of counsel on a pleading certifies that a reasonable investigation of the facts and a normally competent level of legal research support the presentation." Lieb, 788 F.2d at 157. Eberle should have undertaken the investigative efforts urged in the 23 July 1998 Letter before signing and filing the Complaint. See Mary Ann Pensiero, Inc. v. Lingle, 847 F.2d 90, 94 (3d Cir. 1988) (quoting Lieb, 788 F.2d at 157) (Rule 11 "imposes on counsel a duty to look before leaping and may be seen as a litigation version of the familiar railroad crossing admonition to `stop, look, and listen'").

Cohen nevertheless argues the Certificate of Registration, in isolation, is not dispositive of partnership status. Cohen contends his prior dealings with Kurtzman and KCMG-NY raised a reasonable question as to whether KRMG-NY operates in substance and in fact as a partnership. See Cohen R. 12(b)(1) Aff. The fact remains, however, Cohen failed to undertake a good-faith effort to amass more information relevant to the determination of the status of KRMG-NY before filing the Complaint. Significantly, Cohen did not offer any corroborating evidence indicating KRMG-NY is anything other than a partnership or challenging the validity of the Change Endorsement, the Feldstein Affidavit, the Certificate of Registration or the Business Certificate for Partners, submitted by the Defendants.

As indicated, Rule 11 sanctions are reserved for claims which are made without a reasonable investigation into the law or facts at the time the Complaint was filed. See Zuk, 103 F.3d at 299; Bensalem Township, 38 F.3d at 1314; Bradgate Assocs., 999 F.2d at 751; Dura Systems, 886 F.2d at 556; Doering, 857 F.2d at 194. Because the initial investigation of Cohen and Eberle into the partnership status of KRMG-NY and diversity of citizenship was unreasonable, the conduct of Cohen and Eberle fall within that category. In light of the actions of Cohen and Eberle, the Defendants responded properly and were forced to file the instant motions.

Accordingly, the Motion for Sanctions is granted. Cohen and Eberle are liable to the Defendants for reasonable counsel fees and costs incurred in preparing the Motion to Dismiss. The Defendants are directed to submit to Magistrate Judge Dennis M. Cavanaugh a certification and proof of attorneys' fees and costs by the close of business 25 January 1999. Cohen and Eberle may challenge the content of the certification of the Defendants by the close of business 5 February 1999.*fn9

Conclusion

For the reasons stated, the Motion to Dismiss is granted. The Motion for Sanctions is granted.


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