Mariano v. 61-63 Bond Street F&B LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

---------------------------------------------------------------x

TATIANA MARIANO, :

:

Plaintiff, :

:

-against- : MEMORANDUM AND ORDER

: 22-cv-7189(DLI)(RML)

61-63 BOND STREET F&B d/b/a :

ACE HOTEL BROOKLYN, :

:

Defendant. :

---------------------------------------------------------------x

DORA L. IRIZARRY, United States District Judge:

On November 28, 2022, Tatiana Mariano (“Plaintiff”) invoked this Court’s diversity

jurisdiction pursuant to 28 U.S.C. § 1332(a) in filing this action against 61-63 Bond Street F&B

LLC d/b/a Ace Hotel Brooklyn (“Defendant”) alleging that it had engaged in unlawful

discriminatory employment practices and retaliated against Plaintiff in violation of New York City

Human Rights Law (“NYCHRL”). See, Complaint (“Compl.”), Dkt. Entry No. 1, ¶¶ 37-47. The

Complaint conclusorily alleges that the amount in controversy exceed $75,000 and that complete

diversity exists because Plaintiff is a “resident” of the State of New York and Defendant is a

Delaware limited liability company. Id. at ¶¶ 2, 4, 5.

On December 5, 2022, the Court issued an order to show cause (“OTSC”) directing

Plaintiff to show cause why this matter should not be dismissed for lack of subject matter

jurisdiction. See, OTSC, dated December 5, 2022. On December 15, 2022, Plaintiff responded to

the OTSC stating that she was entitled to a “rebuttable presumption” that the damages alleged in

the Complaint are a good faith representation of the amount in controversy and that NYCHRL

claims generally merit awards ranging from $30,000.00 to $125,000.00 awards. See, Plaintiff’s

Response to OTSC (“OTSC Response”), Dkt. Entry No. 7. Plaintiff further stated that there was

no indication that any member of the Defendant, a limited liability company (“LLC”), was a “New

York member” and Plaintiff’s counsel had conferred with Defense Counsel, who was “unaware of

any New York member.” Id.

On December 20, 2022, Defense Counsel filed a letter stating that Defendant 61-63 Bond

Street F&B LLC has one member, Ace Group International, LLC (“Ace”) and that Ace has five

members, two of whom are individuals who are citizens of the State of New York.” See, Ltr. from

Defendant (“Def. Ltr.”), Dkt. Entry No. 8. On December 22, 2022, Plaintiff filed a letter requesting

that Defendant provide “specific information on the individual members purported to be citizens

of New York” adding that, if diversity jurisdiction did not exist, “the matter may be dismissed

without prejudice pending re-filing of the Complaint once Plaintiff files a Charge in the E.E.O.C

and receives a Notice of Right to Sue” or “stayed pending the foregoing.” See, Plaintiff 12/22 Ltr.

(“Pl. Ltr.”), Dkt. Entry No. 9.

For the reasons set forth below, the Court finds that it lacks subject matter jurisdiction and

this matter is dismissed.

DISCUSSION

As a threshold matter, federal courts have “‘an independent obligation to determine

whether subject-matter jurisdiction exists, even in the absence of a challenge from any party.’”

Pratt v. Kilo Int'l, LLC, 2015 WL 1034406, at *3 (E.D.N.Y. Mar. 10, 2015) (quoting Arbaugh v.

Y & H Corp., 546 U.S. 500, 514 (2006)); See, Lyndonville Sav. Bank & Tr. Co. v. Lussier, 211

F.3d 697, 700-01 (2d Cir. 2000) (“[F]ailure of subject matter jurisdiction is not waivable and may

be raised at any time by a party or by the court sua sponte. If subject matter jurisdiction is lacking,

the action must be dismissed.”).

Where, as here, a plaintiff brings an action in federal court based on diversity jurisdiction,

the plaintiff bears the burden of establishing that the requirements of such jurisdiction have been

met. See, Conyers v. Rossides, 558 F.3d 137, 143 (2d Cir. 2009) (“The party invoking federal

jurisdiction bears the burden of establishing that jurisdiction exists.”) (internal citations omitted).

To establish diversity jurisdiction, the invoking party must show: (1) the amount in controversy

exceeds the sum or value of $75,000, exclusive of costs or interest; and (2) there is complete

diversity of citizenship between the parties. See, 28 U.S.C. § 1332(a). Here, the Court finds that

Plaintiff has not established either complete diversity of citizenship between the parties or the

threshold jurisdictional amount in controversy.

I. Diversity of Citizenship

A. Plaintiff’s Citizenship

“[A]n individual’s citizenship for diversity purposes is determined by his or her domicile,

not his or her residence.” Century Metal Recycling, Pvt. Ltd. V. Dacon Logistics, LLC, 2013 WL

5929816, at *2 (D. Conn. Nov. 4, 2013) (citing Palazzo v. Corio, 232 F.3d 38, 42 (2d Cir. 2000)).

“Allegations of residency alone cannot establish citizenship.” Canedy v. Liberty Mutual Ins. Co.,

126 F.3d 100, 103 (2d Cir.1997); See also, Adrian Family Partners I, L.P. v. ExxonMobil Corp.,

79 F. App’x 489, 491 (2d Cir. 2003) (“It is well established that [a] statement of residence, unlike

domicile, tells the court only where the parties are living and not of which state they are citizens.”)

(internal quotations and citations omitted). Here, Plaintiff, an individual, alleges only that she “is

a resident of the State of New York and Bronx County” and is silent as to her citizenship or

domicile. Compl. ¶ 4. This allegation is insufficient to establish her citizenship for diversity

jurisdiction purposes.

B. Defendant’s Citizenship

Plaintiff also fails to allege properly the citizenship of Defendant, which is an LLC. “[A]

limited liability company or other unincorporated entity is not the same as a corporation for

purposes of determining its citizenship.” Sixto v. Both Trucking, LLC, 2022 WL 1124824, at *1

(E.D.N.Y. Apr. 14, 2022). An LLC “takes on the citizenship of each of its members.” Bayerische

Landesbank, N.Y. Branch v. Aladdin Capital Mgmt. LLC, 692 F.3d 42, 49 (2d Cir. 2012); Sixto,

2022 WL 1124824, at *1. Therefore, to establish the citizenship of an LLC, a litigant “must allege

the citizenship of natural persons who are members of [the] limited liability company . . . and the

place of incorporation and principal place of business of any corporate entities who are members

of the limited liability company.” New Millennium Capital Partners, III, LLC v. Juniper Grp. Inc.,

2010 WL 1257325, at *1 (S.D.N.Y. Mar. 26, 2010). Additionally, “[i]f any of an LLC’s members

are themselves non-corporate entities, then a [litigant] must allege the identity and citizenship of

their members, proceeding up the chain of ownership until it has alleged the identity and

citizenship of every individual and corporation with a direct or indirect interest in the LLC.’” Sixto,

2022 WL 1124824, at *1-2 (quoting U.S. Liab. Ins. Co. v. M Remodeling Corp., 444 F. Supp.3d

408, 410 (E.D.N.Y. 2020)).

Here, though it is “a bedrock principle of federal practice” that the identities and

citizenships of an LLC’s members must be alleged to establish the citizenship of an LLC, the

Complaint is devoid of any allegations as to the identity or citizenship of any of Defendant’s

members. See, Sixto, 2022 WL 1124824, at *1-2; See also, Kenshoo, Inc. v. Aragon Advertising,

LLC, 586 F. Supp.3d 177, 180 (E.D.N.Y. 2022) (collecting cases). The Complaint alleges only

that Defendant “is a foreign limited liability company, duly existing pursuant to, and by virtue of,

the laws of the State of Delaware.” Compl. ¶ 5. This is insufficient to establish the citizenship of

an LLC. See, Century Metal, 2013 WL 5929816, at *2-3 (“The Court need not look to the state in

which [an LLC] is organized or has its principal place of business, but rather, each of the states in

which it has members,” nor may a court “simply infer” citizenship from residence.) (internal

quotations and citations omitted); Lewis v. Allied Bronze LLC, 2007 WL 1299251, at *1 (E.D.N.Y.

May 2, 2007) (“[T]he citizenship of a limited liability company is not the state in which it is

organized or has its principal place of business.”).

In response to the OTSC, Plaintiff responded that, “upon pre-suit and post-suit

investigation and review of attainable corporate records, there is no indication of any New York

member” and that Defense Counsel is “unaware of any New York member.” See, OTSC Response

at 1. This insufficient response does not establish, or even identify, the citizenship of each member

of the LLC. The parties’ subsequent filings underscore Plaintiff’s failure both to investigate and

allege Defendant’s citizenship adequately. See, Def. Ltr.; Pl. Ltr. Specifically, Defendant states

that it is an LLC consisting of one member, an LLC that, in turn, has five members, two of whom

are citizens of New York, which destroys diversity here, presuming that Plaintiff is a citizen of

New York. See, Def. Ltr. Plaintiff’s response all but concedes the lack of diversity, as it requests

more information from Defendant concerning the members of the LLC who are citizens of New

York and acknowledges that this matter may be dismissed if diversity jurisdiction does not exist.

See, Pl. Ltr.

In sum, Plaintiff’s Response to the OTSC and subsequent letter are too little, too late and

cannot cure Plaintiff’s deficient invocation of diversity jurisdiction. Indeed, “[i]t is not the

province of this Court to hear an action over which it has no subject matter jurisdiction in the hope

that if plaintiff's counsel does the work [it] should have done before commencing it, perhaps

jurisdiction will be found.” Lewis, 2007 WL 1299251, at *2. “A plaintiff’s lawyer must do the

research first and if she cannot find a definitive basis for alleging the citizenship of each defendant,

then the case belongs in state court.” Kenshoo, 586 F. Supp.3d at 181. Accordingly, Plaintiff has

failed to satisfy the diversity of citizenship requirement necessary to invoke this Court’s

jurisdiction and dismissal is warranted. Id. at 180-82 (“‘[T]he averment of jurisdiction shall be

positive – [and] the declaration shall state expressly the fact upon which jurisdiction depends’”)

(quoting Brown v. Keene, 33 U.S. 112 (1834) (Marshall, C.J.)); Lewis, 2007 WL 1299251, at *2

(dismissing action on subject matter jurisdiction grounds pursuant to consideration by Court sua

sponte where plaintiff’s counsel “continue[d] to misunderstand the rules governing” diversity

jurisdiction in failing to allege properly the citizenship of defendant LLC).

Notably, Plaintiff is not without remedy as Plaintiff may file a complaint in state court or

with the New York City Commission on Human Rights, as Plaintiff herself acknowledges. See,

Pl. Ltr.; See also, Kenshoo, 586 F. Supp.3d at 182 (“There is no reason to stretch the requirements

for subject matter jurisdiction when plaintiff can walk across the street (literally) and have the

same law applied to its claims that would be applied here.”).

II. Amount in Controversy Requirement

While the failure to establish diversity of citizenship alone is sufficient to warrant

dismissal, the Court notes that Plaintiff also failed to satisfy the amount in controversy

requirement. A party invoking a federal court’s diversity jurisdiction has “the burden of proving

that it appears to a ‘reasonable probability’ that the claim is in excess of the statutory jurisdictional

amount.” Scherer v. Equitable Life Assurance Soc'y of U.S., 347 F.3d 394, 397 (2d Cir. 2003)

(internal citations omitted). The “reasonable probability” burden is not onerous at the pleading

stage because “a rebuttable presumption [exists] that the face of the complaint is a good faith

representation of the actual amount in controversy.” Id. at 397 (internal citations omitted).

However, “this face-of-the-complaint presumption is available only if the face of the

complaint alleges facts plausibly suggesting the existence of claims aggregating over the

jurisdictional minimum amount in controversy.” Wood v. Maguire Auto. LLC, 2011 WL 4478485,

at *2 (N.D.N.Y. Sept. 26, 2011) (citing Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009)), aff'd, 508 F.

App'x 65, 65-66 (2d Cir. 2013) (summary order) (affirming that bare and conclusory allegations

as to amount in controversy are “not entitled to a presumption of truth.”). As courts in this circuit

have explained, “the court need not presume that [a] general allegation that the amount in

controversy exceeds the jurisdictional minimum constitutes a good faith representation of the

actual amount in controversy.” Id., at *2, aff'd, 508 F. App’x 65 (2d Cir. 2013); Turban v. Bar

Giacosa Corp., 2019 WL 3495947, at *2 (S.D.N.Y. Aug. 1, 2019) (same). Instead, to invoke

diversity jurisdiction, a plaintiff must allege facts sufficient to “plausibly show an amount in

controversy of more than $75,000.” Lapaglia v. Transamerica Cas. Ins. Co., 155 F. Supp.3d 153,

156 (D. Conn. 2016); Turban, 2019 WL 3495947, at *2 (declining to exercise jurisdiction over

claims where “allegations [were] insufficiently detailed to render the jurisdictional amount

plausible on its face”).

Here, Plaintiff’s bare and conclusory allegations are insufficient to establish plausibly that

the amount in controversy requirement has been met. The only allegation as to the amount in

controversy is the boilerplate assertion that “[t]he matter in controversy exceeds, exclusive of

interest and costs, the sum of $75,000.00.” Compl. ¶ 2. Without more, Plaintiff’s boilerplate

assertion is “conclusory and not entitled to a presumption of truth.” See, Wood, 508 F. App’x at

65.

Nor does the Complaint allege facts establishing the threshold jurisdictional amount in

controversy. Plaintiff contends she has met this requirement satisfactorily because she alleged

both economic and emotional damages as a result of losing her job and the hostile work

environment. See, OTSC Response. Plaintiff cites to a single allegation concerning sending text

messages about feeling suicidal. Compl. ¶ 21. Further, Plaintiff argues that it is “well-settled”

that prevailing plaintiffs in NYCHRL claims generally “merit $30,000.00 to $125,000.00 awards.”

OTSC Response (quoting Velez v. Girraphic LLC, 2021 WL 1873233, at *5 (S.D.N.Y. May 10,

2021) (citing Lore v. City of Syracuse, 670 F.3d 127, 177 (2d Cir. 2012)).

While the Complaint requests lost wages/income, interest, benefits, and compensatory

damages, Plaintiff fails to specify the monetary sum sought or owed or any facts supporting these

requests. Compl. ¶¶ B, C. Moreover, there are no allegations plausibly supporting that Plaintiff’s

emotional damages will exceed the lower end of the damages threshold that Plaintiff claims NYCHRL

cases generally merit, to wit, $30,000, which is less than half of the threshold jurisdictional amount in

controversy. See, Munson v. Diamond, 2017 WL 4863096, at *8 (S.D.N.Y. June 1, 2017)

(explaining that courts have awarded emotional distress damages in the range of $15,000 based on

testimony that a hostile work environment caused the plaintiff to experience stress, anger, sadness,

and frustration and that the plaintiff suffered from depression, panic attacks, headaches, nausea,

loss of appetite, hives, and severe insomnia even after her employment was terminated) (citing

Jowers v. DME Interactive Holdings, Inc., 2006 WL 1408671 (S.D.N.Y. May 22, 2006) (collecting

cases)). Instead, Plaintiff expects the Court to engage in sheer speculation based solely on what

other plaintiffs have recovered in similar cases.

Plaintiff further maintains that she seeks “emotional damages beyond the ‘garden-variety’

category,” but does not allege any facts in support such as medical or mental health treatment, cost of

medications, or significant, debilitating impact on Plaintiff’s health and ability to work. OTSC

Response (emphasis omitted); See, Caravantes v. 53rd St. Partners, LLC, 2012 WL 3631276, at *22

(S.D.N.Y. Aug. 23, 2012) (explaining the different types of emotional distress damages awards in the

Second Circuit). See also, Duarte v. St. Barnabas Hosp., 341 F. Supp.3d 306, 322 (S.D.N.Y. 2018)

(concluding that a plaintiff’s “vague and subjective complaints of insomnia, lower self-esteem,

depression, anxiety, and stomach aches and headaches – unsupported by medical corroboration –

establish no more than ‘garden variety’ emotional distress.”). Additionally, there are no allegations

concerning the amount of purported lost wages for employment establishing the jurisdictional

threshold amount in controversy. Thus, even construing the allegations as favorably to Plaintiff as

possible, the Court finds that the Complaint on its face does not plausibly support damages arising

from the claims in excess of $75,000.

The Court declines to consider Plaintiff’s requests for punitive damages, declaratory relief,

and attorney’s fees in assessing the amount in controversy because the Complaint is devoid of any

allegations that explain, justify, or attempt to value any of these other forms of relief sought. See,

Compl. ¶¶ A, D, E; Parker v. Riggio, 2012 WL 3240837, at *6-8 (S.D.N.Y. Aug. 6, 2012)

(declining to consider declaratory relief sought in assessing amount in controversy where plaintiff

“d[id] not seek a specified amount of damages” and did not provide a basis for valuing the

requested relief); KT Export v. Wolf Canyon of Am., Inc., USA, 2010 WL 5249231, at *1 (S.D.N.Y.

Dec. 17, 2010) (finding “Plaintiffs’ failure to explain or justify their claim for punitive damages

defeat[ed] any attempt to include those damages in the calculation of the amount in controversy”).

Attorney’s fees typically are not considered in calculating the amount in controversy

threshold unless “they are recoverable as a matter of right pursuant to statute or contract,” which

is not the case here as the award of attorney’s fees is discretionary with the Court. Cohen v. KIND

L.L.C., 207 F. Supp.3d 269, 272 (S.D.N.Y. 2016) (quoting Ryan v. Legends Hospitality, LLC, 2012

WL 3834088, at *2 (S.D.N.Y. Aug. 1, 2012) (citing Givens v. W.T. Grant Co., 457 F.2d 612, 614

(2d Cir.1972)). However, even where attorney’s fees may be considered to satisfy the

jurisdictional damages threshold, courts need not rely on them where, as here, the allegations do

not support a finding that there is over $75,000 in controversy and it would require an unreasonable

amount of attorney’s fees to reach the jurisdictional threshold. See, Bolanos v. Hooten, 2021 WL

516580, at *1 (S.D.N.Y. Feb. 11, 2021) (declining to consider attorney’s fees in determining

amount in controversy where complaint “revealed minimal information to suggest [the] threshold

is met”).

Accordingly, as Plaintiff has failed to satisfy the amount in controversy requirement, this

Court lacks subject matter jurisdiction over this action and dismissal is warranted

CONCLUSION

For the reasons set forth above, this action is dismissed for lack of subject matter

jurisdiction.

SO ORDERED.

Dated: Brooklyn, New York

March 2, 2023

/s/

DORA L. IRIZARRY

United States District Judge