The opinion of the court was delivered by: Hon. Jerome B. Simandle
[relates to Docket Item Nos. 9 and 14]
This matter comes before the Court upon two motions: (1) the motion of Defendants Williard Inc., United States Fidelity and Guaranty Company, Arch Insurance Company, and Williard, a Division of Limbach Co., L.L.C. (collectively the "Defendants") to dismiss for lack of subject matter jurisdiction [Docket Item No. 9] ("Motion to Dismiss") and (2) the subsequent cross-motion of Plaintiff-Hessert Construction New Jersey, L.L.C. ("Hessert") for leave to amend the Complaint, or in the alternative, to Remove to state court [Docket Items No. 13, 14] ("Motion to Amend"). The resolution of the jurisdictional issue turns upon the principal question presented, whether, as Defendants allege, the citizenry of a unincorporated limited liability company is each state in which an owner is a citizen. The Court has considered the submissions of the parties, and for the reasons expressed below, will grant Defendants' Motion to Dismiss, and deny Plaintiff's Motion to Amend.
On November 28, 2006, Hessert, a New Jersey limited liability company, filed a complaint against Garrison Architects, P.C., Jon Edward Fox and Associates, P.C., Williard Inc., United States Fidelity and Guaranty Company, Arch Insurance Company, and Williard, a Division of Limbach Co., L.L.C. ("Division of Limbach") alleging negligence and breach of contract in relation to a construction project in Camden, New Jersey. [Docket Item No. 1.] On January 31, 2007, Defendants moved to dismiss based on lack of subject matter jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(1). [Docket Item No. 9]. Specifically, Defendants contend that Hessert has not alleged sufficient facts to support its assertion of diversity jurisdiction, pursuant to 28 U.S.C. § 1332, because Hessert failed to allege the citizenship of the members of the limited liability company Hessert or the members of the limited liability company Division of Limbach. (Defs.' Br. at 3.) Furthermore, Defendants offered to provide a sworn affidavit establishing that the constituent members of Division of Limbach are citizens "of several states including Pennsylvania, New Jersey, and New York," to the extent that such a showing would destroy complete diversity of citizenship. (Id. at 3-4.) On February 13, 2007, Hessert moved to amend its Complaint pursuant to Federal Rule of Civil Procedure 15(a). [Docket Item No. 14]. Hessert's proposed amendment remedies the informational insufficiency of the original Complaint by alleging that the members of Hessert are citizens of New Jersey and, "on information and belief," that all members of both Division of Limbach and its parent company Limbach Co., L.L.C.*fn2 ("Limbach") are "citizens of states other than New Jersey." (Am. Compl. ¶¶ 1, 5.)
Finally, Defendants filed a supplemental brief in support of their Motion to Dismiss and in opposition to Hessert's Motion to Amend ("Supplemental Brief"). [Docket Item No. 16.] The Supplemental Brief contained the sworn affidavit of Mr. Charles A. Bacon ("Bacon"), stating that he is a member of Limbach Holdings, L.L.C., which is the sole member of Limbach Facility Services, L.L.C., which in turn is the sole member of Limbach, of which Defendant Division of Limbach is a division. (Aff. of Bacon ¶¶ 1-8.) Bacon also states that he is a citizen of the state of New Jersey. (Id. ¶ 8.) Accordingly, Defendants insist that Hessert's Motion to Amend must be denied because Hessert's amendment of the jurisdictional allegations would be futile, and that Defendants' Motion to Dismiss must be granted for lack of subject matter jurisdiction because there is not complete diversity of citizenship. (Defs.' Supplm. Br. at 2-3.)
The issue underlying both motions is whether this Court has subject matter jurisdiction over the case at bar, pursuant to 28 U.S.C. § 1332 ("Section 1332").
A party may, at any time, move to dismiss an action for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). This Court has original jurisdiction over "all civil actions . . . between citizens of different states" in which the amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a)(1). However, it is insufficient that the plaintiff and one of the defendants are citizens of different states; rather, each and every defendant in the action must be a citizen of a different state than the plaintiff. See Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267 (1806); Midlantic Bank v. Hansen, 48 F.3d 693, 696 (3d Cir. 1995).
2. Motion for Leave to Amend
Leave to amend pursuant to Federal Rule of Civil Procedure 15(a) should be freely granted "when justice so requires." Fed. R. Civ. P 15(a); see Adams v. Gould, Inc., 739 F.2d 858, 864 (3d Cir. 1984) (noting that Rule 15(a) "embodies the liberal pleading philosophy of the federal rules") (internal citation omitted), cert. denied, 469 U.S. 1122 (1985). Although liberally granted, the decision to grant leave to amend a complaint rests within the sound discretion of the trial court. Massarsky v. Gen. Motors Corp., 706 F.2d 111, 125 (3d Cir. 1983). Trial courts may refuse to grant leave when a plaintiff exercises "undue delay," demonstrates "bad faith or dilatory motive," repeatedly "fail[s] to cure deficiencies by amendments previously allowed," where allowing the amendment ...