                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


                                                      )
ANTHONY LOPES                                         )
                                                      )
               Plaintiff,                             )
                                                      )
       v.                                             )              Case Number
                                                      )           1:13-cv-01550 RCL
JETSETDC, LLC, et al.                                 )
                                                      )
              Defendants.                             )
                                                      )



                                  MEMORANDUM OPINION

       Two motions have been brought before the Court. Defendants Inner Circle 1420, LLC

(“Inner Circle”) and David McLeod (“McLeod”) have filed a motion to dismiss [16] pursuant to

Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction, asserting that plaintiff has failed

to show that complete diversity exists among the parties under 28 U.S.C. § 1332(a). In response

to defendants’ motion to dismiss, plaintiff Anthony Lopes filed a motion for leave to amend his

complaint [17] pursuant to Fed. R. Civ. P. 15(a) and 28 U.S.C. § 1653.

       Upon consideration of plaintiff’s motion [17], defendants’ opposition [25], the reply

thereto [28], and the record herein, the Court will GRANT plaintiff’s Motion For Leave to File

Second Amended Complaint. Further, upon consideration of the defendants’ motion to dismiss

[16], plaintiff’s opposition [18], and the record herein, the Court will DENY defendants’ motion

to dismiss for lack of subject matter jurisdiction.

                                     I.      BACKGROUND
   Plaintiff Anthony Lopes (“Plaintiff”) filed this suit against defendant JetSetDC, LLC, et al.,

after an alleged assault and battery occurred on the premises of defendant Lotus Lounge DC

(“Lotus Lounge”). Am. Compl. ¶ 13. Plaintiff is the owner and operator of an automated teller

machine (“ATM”) business and has had an ATM placed at Lotus Lounge since 2009. Id. at ¶ 11.

On or about December 27, 2012, plaintiff was conducting a service visit at Lotus Lounge to

service the ATM placed on the premises. After being admitted through the exit gate by security,

defendant Jameka Ivy (“Ivy”) confronted the plaintiff, asserting plaintiff needed her permission

to walk past, and demanded that he pay an entrance fee. Am. Compl. ¶ 12. After the plaintiff

involved the manager on duty, defendant Ivy yelled at the manager regarding dissatisfaction with

the situation, and plaintiff was permitted to proceed to service the ATM. Id. at ¶ 12. After

servicing the ATM, plaintiff once again needed to pass by defendant Ivy in order to leave the

premises. When plaintiff attempted to pass defendant Ivy a second time she allegedly cursed at

the plaintiff, hurled racially-charged insults, and demanded that she be paid the entrance fee.

Am. Compl. ¶ 13. At this time, plaintiff removed his phone in order to take defendant Ivy’s

picture. In response, defendant Ivy slapped the phone from the plaintiff’s hands, and began to

punch the plaintiff with a closed fist numerous times in the face, head, and left eye, before

security personnel pulled the two individuals apart. Id. at ¶ 13. Immediately following the

physical altercation, plaintiff felt significant pain and swelling about his head, face, and left eye.

Plaintiff went to retrieve his phone as defendant Ivy was deleting her picture from the phone, and

he left defendant Lotus Lounge’s premises. Am. Compl. ¶ 14.

   Plaintiff alleges a number of negative physical and emotional effects from the incident and

has sought treatment from ophthalmologists, a dentist, neurologist, and a mental health

professional. Am. Compl. ¶ 15. Plaintiff now brings a number of claims against defendant Ivy



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in her personal capacity and against her various employers:          assault; battery; negligence;

negligent hiring and retention; negligent supervision; respondeat superior/agency; and

defamation. Am. Compl. ¶ 17 – 55.

   On November 27, 2013, defendant Inner Circle and defendant McLeod moved to dismiss

[16] pursuant to Fed. R. Civ. P. 12(b)(1), for failure to plead complete diversity of citizenship.

In response to this motion to dismiss, plaintiff now moves for leave to amend his pleadings a

second time, in an attempt to cure a jurisdictional deficiency, and plead that defendant McLeod

is a resident and citizen of the state of Maryland.

                                  II.     LEGAL STANDARD

   A. Motion for Leave to Amend a Complaint

   Federal Rule of Civil Procedure 15(a)(2) provides that the Court should freely grant a party

leave to amend its pleading “when justice so requires.” Rule 15(a)(2) is to be interpreted

liberally, as “Congress intended to permit amendment broadly to avoid dismissal of suits on

technical grounds.” Swan v, Clinton, 100 F.3d 973, 980 (D.C. Cir. 1996). Indeed, “a district

court should grant a motion to amend unless there is a clear and solid justification for denying

it.” Monroe v. Williams, 705 F. Supp. 621, 623 (D.D.C. 1988). Denying leave to amend without

sufficient justification, such as undue delay, bad faith, or dilatory motive constitutes an abuse of

discretion. Foman v. Davis, 371 U.S. 178, 182 (1962); Caribbean Broad. Sys. v. Cable &

Wireless PLC, 148 F.3d 1080, 1084 (D.C. Cir. 1998). The District of Columbia Circuit has also

declined leave to amend where there have been repeated failures to cure pleading deficiencies by

previous amendments or where permitting the amendment proposed would be futile to the

proposing party’s objective, such as pleading a valid claim. Firestone v. Firestone, 76 F.3d

1205, 1208 (D.C. Cir. 1996).



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       28 U.S.C. § 1653 provides that “defective allegations of jurisdiction may be amended,

upon terms, in the trial or appellate courts.” District of Columbia ex rel. American Combustion,

Inc. v. Transamerica, 797 F.2d at 1044 (D.C. Cir. 1986). This statutory provision is to be

interpreted liberally, permitting a “party who has not proved, or even alleged, that diversity

exists to amend his pleadings even as late as on appeal.” Novak v. Capital Mgmt. & Dev. Corp.,

452 F.3d 902, 906 (D.C. Cir. 2006); Loughlin v. United States, 393 F.3d 155, 171 (D.C. Cir.

2004); Harrison v. Norton, 2004 U.S. App. LEXIS 9404, at *1 (D.C. Cir. 2004). The purpose of

28 U.S.C. § 1653 is to “permit amendment of incorrect statements about jurisdiction that actually

exists, and not defects in the jurisdictional facts themselves.” Brown v. United States, 2004 U.S.

App. LEXIS 3338, at *2 (D.C. Cir. 2004). To properly establish diversity from an individual

defendant, “it has been held repeatedly that an allegation of residence alone is insufficient to

establish the citizenship necessary for diversity jurisdiction.” Naartex Consulting Corp. v. Watt,

722 F.2d 779, 792 n.3 (D.C. Cir. 1983).

   B. Motion to Dismiss for Lack of Subject Matter Jurisdiction

   A defendant may move to dismiss a complaint or a claim therein, for lack of subject-matter

jurisdiction. Fed. R. Civ. P. 12(b)(1). “Federal courts are courts of limited jurisdiction. They

possess only that power authorized by Constitution and statute, which is not to be expanded by

judicial decree. It is to be presumed that a cause lies outside this limited jurisdiction, and the

burden of establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen v.

Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); McNutt v. Gen. Motors Acceptance

Corp. of Ind., 298 U.S. 178, 182, (1936); Bernard v. U.S. Dept. of Def., 362 F. Supp. 2d 272, 277

(D.D.C. 2005).




                                                4
        A Rule 12(b)(1) motion “imposes on the Court an affirmative obligation to ensure that it

is acting within the scope of its jurisdictional authority” and “[f]or this reason, the plaintiff’s

factual allegations in the complaint will bear closer scrutiny [than] in resolving a Fed. R. Civ. P.

12(b)(6) motion.” Grand Lodge of the FOP v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001).

The Court “should accept as true all of the factual allegations contained in the complaint,” but

the Court “is not limited to the allegations contained in the complaint … to determine whether it

has jurisdiction over the case, the Court may consider materials outside the pleadings.” Lipsman

v. Sec’y of the Army, 257 F. Supp. 2d 3, 6 (D.D.C. 2003). The Court should “draw all reasonable

inferences in the nonmovant’s favor,” but “need not accept as true legal conclusions cast as

factual allegations.” Id. at 7.

        The “District Courts shall have original jurisdiction of all civil actions where the matter

in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is

between citizens of the different States.” 28 U.S.C. § 1332(a)(1). “Citizenship is an essential

element of federal diversity jurisdiction; failing to establish citizenship is not a mere technicality.

The party seeking the exercise of diversity jurisdiction bears the burden of pleading the

citizenship of each and every party to the action.”           Novak v. Capital Management and

Development Corp., 452 F.3d 902, 906 (D.C. Cir. 2006); see also Naartex Consulting Corp. v.

Watt, 722 F.2d 779, 792 (D.C. Cir. 1983). Further, “diversity jurisdiction does not exist unless

each defendant is a citizen of a different state from each plaintiff. Thus the presence of just one

nondiverse plaintiff … destroys diversity jurisdiction under § 1332.”           In re Lorazepam &

Clorazepate Antitrust Litig. v. Mylan Labs., 631 F.3d 537, 541 (D.C. Cir. 2011).

                                        III.    ANALYSIS




                                                  5
    There are two separate motions before the Court that will be addressed in this memorandum:

(1) plaintiff’s motion for leave to file a second amended complaint; and (2) defendants’ motion

to dismiss for lack of subject matter jurisdiction. They will be addressed in turn. As an initial

matter, the Court grants plaintiff’s motion for leave to file a second amended complaint pursuant

to Fed. R. Civ. P. 15(a) and 28 U.S.C. § 1653. Further, the Court finds that plaintiff’s counsel

did not violate Fed. R. Civ. P. 11(b) for failure to conduct a reasonable pre-filing inquiry under

the circumstances. Finally, the Court finds that although plaintiff did violate Local Rule 7.1(m)

by failing to confer with opposing counsel prior to filing a nondispositive motion, the Court will

not deny plaintiff’s motion for leave to amend based on this violation.

    Having granted plaintiff’s motion for leave to amend, the Court hereby denies defendants’

motion to dismiss for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). The

Court holds that plaintiff’s second amended complaint [17] properly pleaded facts to establish

complete diversity of citizenship between plaintiff and defendants McLeod and Inner Circle

under 28 U.S.C. § 1332(a). Further, the Court reserves judgment on defendants’ request to have

defendant Lotus Lounge DC dismissed from the case, and grants limited discovery to the

plaintiff.


    A. Plaintiff’s motion for leave to amend should be granted under Fed. R. Civ. P. 15(a)
    and 28 U.S.C. § 1654


        The Court should freely grant a party leave to amend its pleading “when justice so

requires,” Fed. R. Civ. P. 15(a), denying leave only when clear justification exists, such as

futility, bad faith, undue delay, or dilatory motive. Monroe, 705 F. Supp. at 623. The plaintiff’s

motion for leave to amend is not futile, as the factual allegations contained in the second

amended complaint would cure a jurisdictional deficiency and support subject matter jurisdiction

                                                6
for the Court by establishing complete diversity between the parties. Caribbean Broad. Sys, 148

F.3d at 1084. Further, the timing of the motion does not suggest that any undue delay will occur,

nor that it will unfairly prejudice the defendants. Finally, no evidence of bad faith or dilatory

motive has been presented to the court. In sum, no justification exists “for the court to depart

from the common practice that motions to amend be freely given.” Firestone, 76 F.3d at 1208.

       In his first amended complaint, plaintiff failed to allege a state of residence and

citizenship for defendant McLeod. Plaintiff corrects this error in his second amended complaint

by alleging that defendant McLeod is a resident and citizen of the state of Maryland. Sec. Am.

Compl. ¶ 8. This proposed amendment is the kind contemplated by 28 U.S.C § 1653, and

plaintiff’s motion for leave to amend shall be granted.


   B. Plaintiff did not violate Fed. R. Civ. P. 11(b) by failing to conduct a reasonable
   inquiry under the circumstances.


   Defendants have alleged that plaintiff has violated Fed. R. Civ. P(11)(b). Fed. R. Civ. P.

11(b) provides that a reasonable inquiry under the circumstances must be undertaken before

presenting to the court a pleading or written motion.       It is an objective test: “whether a

reasonable inquiry would have revealed that there was no basis in law or fact for the asserted

claim.” Washington Bancorporation v. Said, 812 F. Supp. 1256, 1275 (D.D.C. 1993). A

representation to the court must have evidentiary support, or, if specifically so identified, will

likely have evidentiary support after a reasonable opportunity for discovery. Fed. R. Civ. P.

11(b)(3); see also Shekoyan v. Sibley Int’l, 409 F.3d 414, 426 (D.C. Cir. 2005).

   Defendants have alleged that plaintiff has violated Fed. R. Civ. P(11)(b) for inconsistent

allegations regarding defendant McLeod’s residency, and a failure to inquire as to the ownership

of the establishment where the alleged events occurred. The defendants have no presented no

                                                 7
evidence to the Court suggesting that the factual contentions contained in the complaint do not

have evidentiary support, or are not likely to have evidentiary support after a reasonable

opportunity for discovery. Plaintiff has filed a motion for leave to file a second amended

complaint that cures a jurisdictional deficiency relating to the defendants, which would support

subject matter jurisdiction for this court. Further, plaintiff asserts that he was able to discern that

defendant Inner Circle maintains an ownership interest in Lotus Lounge DC, the business where

the alleged events took place, and seeks to determine if any additional ownership interests exist.

The Court cannot say that plaintiff’s inquiry under the circumstances prior to filing was

unreasonable. For the aforementioned reasons, the Court holds that no violation of Fed. R. Civ.

P. 11(b) occurred.


   C. Plaintiff did violate Local Civil Rule 7.1(m), but the Court will not deny the
   plaintiff’s motion for leave to amend on those grounds.


   Defendants note in their motion to dismiss that plaintiff failed to comply with Local Rule

7.1(m) when filing his motion for leave to amend. Local Civil Rule 7.1(m) provides that “before

filing any non-dispositive motion in a civil action, counsel shall discuss the anticipated motion

with opposing counsel.” The D.C. Circuit has defined a dispositive motion as “a motion that, if

granted, would result either in the determination of a particular claim on the merits or elimination

of such a claim from the case. Burkhart v. Washington Metropolitan Area Transit Authority, 112

F.3d 1207, 1215 (D.C. Cir. 1997). Plaintiff’s motion for leave to amend does not meet this

standard, and thus is not a dispositive motion. Local Civil Rule 7.1(m) “clearly states that that it

applies to any non-dispositive motion,” and while plaintiff’s motion may be “closely

intertwined” with a dispositive motion, this argument has been explicitly rejected by this Court.

Niedermeier v. Office of Max S. Baucus, 153 F. Supp. 2d 23, 27 (D.D.C. 2001); Center for Auto

                                                  8
Safety v. National Highway Traffic Safety Administration, 93 F. Supp. 2d 1, 12 (D.D.C. 2000)

(no exception for nondispositive motions which happen to relate to dispositive motions).

   Although plaintiff breached Local Civil Rule 7.1(m), the Court will grant his motion for

leave to amend the complaint. This court has a “general judicial preference for resolving

motions on their merits rather than dismissing them on technicalities.” Niedermeier, 153 F.

Supp. 2d at 27. As a final matter, the Court declines to award plaintiff attorney’s fees pursuant

to Local Rule 54.2(c). Plaintiff violated Local Civil Rule 7.1(m), and it is not an unreasonable

burden to require that plaintiff respond to defendants’ opposition to the motion.


   D. Defendants’ motion to dismiss for lack of subject matter jurisdiction is denied, as
   complete diversity between the parties exists under 28 U.S.C. § 1332.


       Defendants McLeod and Inner Circle have filed a motion to dismiss [16] pursuant to Fed.

R. Civ. P. 12(b)(1) for lack of complete diversity among the parties under 28 U.S.C. § 1332.

Defendants assert that plaintiff’s first amended complaint failed to plead a state of residence and

citizenship for defendant McLeod. Subsequent to the defendants filing their motion to dismiss,

the plaintiff sought leave from the Court to file a second amended complaint [17], which this

Court has granted.

       Plaintiff’s second amended complaint sought to cure jurisdictional deficiencies by

pleading that defendant McLeod is a resident and citizen of the state of Maryland, and providing

the Court with a specific address of residence in Maryland. These factual claims were not

contested by the defendants in their opposition to the motion [25], and the Court has not been

presented with any evidence to the contrary. As such, plaintiff’s second amended complaint

pleads facts sufficient to establish complete diversity between plaintiff and defendant McLeod

under 28 U.S.C. § 1332(a) and amount in controversy exceeding $75,000. The Court concludes


                                                 9
that the second amended complaint pleads sufficient facts to establish jurisdiction, and defendant

McLeod’s motion to dismiss for lack of subject matter jurisdiction is denied.

       Defendant Inner Circle 1420, a Limited Liability Company (“LLC”), has also sought to

have the case dismissed for lack of subject matter jurisdiction. 28 U.S.C. § 1332 does not

specify the citizenship status for non-corporate legal persons. The Supreme Court “has long

maintained a bright-line rule limiting corporate citizenship to corporations.” C.T. Carden v.

Arkoma Assocs., 494 U.S. 185, 190 (1990).           Non-corporate entities “are analogized to

partnerships, which carry the citizenship of their members. Id. at 195-96. The District of

Columbia and “every court that has addressed the citizenship status of LLCs has held

unequivocally that LLCs do not enjoy corporate citizenship.”      Johnson-Brown v. 2200 M St.

LLC, 257 F. Supp. 2d 175, 180 (D.D.C. 2003). As an LLC, “diversity jurisdiction in a suit by or

against the entity depends on the citizenship of all the members.” Carden v. Arkoma Assocs.,

494 U.S. 185, 195-96 (1990).

       Plaintiff’s second amended complaint pleads that defendant McLeod is a resident and

citizen of the state of Maryland. Sec. Am. Compl. ¶ 8. The complaint further pleads that

defendant McLeod is the owner and operator of defendant Inner Circle 1420, LLC. Id. at ¶ 8.

These factual allegations are not contested by the defendants in opposition to the motion for

leave to amend [25]. Further, defendants have not raised the argument that additional members,

not diverse from plaintiff, comprise defendant Inner Circle’s membership. Defendant McLeod’s

status as owner and operator of defendant Inner Circle is sufficient to constitute membership. An

LLC carries the citizenship of its members. C.T. Carden, 494 U.S. at 190. Defendant Inner

Circle carries the citizenship of the state of Maryland. Complete diversity exists among the

parties and defendant Inner Circle’s motion to dismiss is hereby denied.



                                               10
   E. The Court reserves judgment on the ultimate issue of whether a trade name or alias
   is a proper party to a suit, and grants plaintiff limited jurisdictional discovery to
   discern whether additional ownership interests exist in defendant Lotus Lounge DC.


   Defendants have argued that co-defendant Lotus Lounge DC should be dismissed from the

case on the grounds that it is not a proper, distinct party to the case under Fed. R. Civ. P. 17(b).

Rule 17(b) provides that an individual who is not acting in a representative capacity may sue or

be sued by the law of the individual’s domicile; corporations may sue and be sued by the law

under which the corporation was organized; and for all other parties, they may sue or be sued by

the law of the state where the court is located. Fed. R. Civ. P. 17(b)(1)-(3). Defendants argue

that Lotus Lounge is not a person, it is not a corporation, and as a trade name or alias, it must be

dismissed from the lawsuit. Def.s’ Mot. Dismiss 4.

       Plaintiff requests discovery to “confirm the real party or parties in interest with respect to

defendant Lotus Lounge DC [18]”, and relies on Fed. R. Civ. P. 17(a)(3) which provides that

“court may not dismiss an action for failure to prosecute in the name of the real party in interest

until, after an objection, a reasonable time has been allowed for the real party in interest to ratify,

join, or be substituted into the action.” Plaintiff’s reliance on Fed. R. Civ. P. 17(a)(3) is

misplaced, however. The focus of Rule 17’s “real party in interest inquiry is whether the party

bringing the action is the same party that is legally … aggrieved. The real party in interest is the

person holding the substantive right sought to be enforced.” Toussaint v. Howard Univ., 2005

U.S. Dist. LEXIS 38738 (D.D.C. 2005). This provision “applies only to prosecuting in the name

of the real party in interest, and has nothing to do with failing to identify the appropriate

defendant.” Smith v. Janey, 664 F. Supp. 2d 1, 8 n.3 (D.D.C. 2009).

       The Court reserves judgment on the ultimate issue of whether a trade name or alias is a

proper party to a lawsuit under District of Columbia law. The D.C. Code is silent on the issue,

                                                  11
and the Court’s research revealed a dearth of on-point case law.          The Court is, however,

persuaded by the plaintiff’s request for limited discovery to determine whether any additional

ownership interests exist in Lotus Lounge DC that might be proper parties to this suit. Further,

at this very early stage of the proceedings, the Court believes it is premature to dismiss defendant

Lotus Lounge from the case.

       Therefore, the Court will allow limited discovery in this case to facilitate its evaluation of

defendants’ motion to dismiss defendant Lotus Lounge DC from the case. Such discovery will

be limited to the development of those facts necessary to determine what, if any, additional

ownership interests exist in Lotus Lounge DC. The Court will order the defendant to respond

fully to plaintiff’s requests within 14 business days.

                                      IV.     CONCLUSION

       For the aforementioned reasons, the Court will GRANT plaintiff’s Motion for Leave to

File Second Amended Complaint, and the Court will DENY plaintiff’s request for attorney’s fees

pursuant to Local Rule 54.2(c).

       The Court will DENY defendants’ Motion to Dismiss for Lack of Subject Matter

Jurisdiction, as plaintiff has successfully pleaded complete diversity between the parties in the

second amended complaint, and the Court has subject matter over the case.

       It is further ORDERED that defendants shall respond fully to plaintiff’s discovery

requests limited to the development of those facts necessary to determine what, if any, additional

ownership interests exist in Lotus Lounge DC within 14 days.

A separate Order consistent with this Memorandum Opinion shall issue this date.

Signed by Royce C. Lamberth, U.S. District Judge, on February 19, 2014.




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