Euclid Turnaround Opportunity Fund LP v. Amerant Equipment Finance

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 25-CV-20647-BLOOM/Elfenbein

EUCLID TURNAROUND

OPPORTUNITY FUND LP,

Plaintiff,

v.

AMERANT EQUIPMENT FINANCE,

et al.,

Defendants.

___________________________________/

ORDER AFTER DISCOVERY HEARING

THIS CAUSE is before the Court on Plaintiff Euclid Turnaround Opportunity Fund LP’s

Notice of Discovery Hearing (the “Notice”), in which it alerted the Court that the Parties required

assistance with two discovery disputes:

1. Whether the stipulations produced by America1 Holdings, LLC, and America1

Industries, LLC on April 15, 2025, which did not identify the underlying, beneficial

members of the limited liability companies that are members of America1

Holdings, LLC and America1 Industries, LLC, failed to comply with this Court’s

Order granting Plaintiffs’ motion to compel (ECF No. 94), and the parties’

agreement following a meet-and-confer discussion regarding the postponement of

the depositions of Sergei Bartushev and Oleksandr Bereva. The subpoenas

underlying the Court’s Order were served on non-parties Sergei Bartushev, SB

Ecliptica, LLC, Truewind Management, LLC, America1 Holdings, LLC, and

America1 Industries, LLC, all of whom are referenced in the operative complaint,

to produce non-privileged documents responsive to the requests in subpoenas

served on them concerning the membership and citizenship of America1 Holdings,

LLC, and America1 Industries, LLC.

2. Whether non-party Sergei Bartushev is required to produce non-privileged

documents responsive to the requests in the subpoena served on him concerning the

transactions referenced in the complaint and the business relationship between the

entities to which he is connected and the named Defendants in the action, including

Amerant, Alliance Metals, LLC, Technocon, LLC, Alliance Metals Alabama, LLC,

Larry Y. Gitman, and/or Jacob Gitman. This involves Requests Nos. 1, 2, 4, 5, and

6 in the subpoena served on Mr. Bartushev.

See ECF No. [104] at 1–2. The Court held a hearing on the discovery disputes listed in the Notice

on April 29, 2025 (the “Hearing”). See ECF No. [103]; ECF No. [105].

At the Hearing, Plaintiff made two Oral Motions: (1) an Oral Motion to Compel America1

Holdings, LLC and America1 Industries, LLC to comply with the Court’s April 8 Order (the

“Motion to Compel Jurisdictional Discovery”), see ECF No. [128], which required them to “provide

Plaintiff either a written stipulation containing” their “membership and citizenship information or

produce documents reflecting that information no later than April 15, 2025,” see ECF No. [94] at

4; and (2) an Oral Motion to Compel Sergei Bartushev to produce non-privileged documents

responsive to Requests Nos. 1, 2, 4, 5, and 6 in the subpoena served on him, see ECF No. [104-2]

at 12–15 (the “Motion to Compel Merits Discovery”), see ECF No. [129].

America1 Holdings, America1 Industries, and Bartushev (collectively, the “America1

Parties”) made an Oral Motion for Reconsideration (the “Motion for Reconsideration”), see ECF

No. [130], asking the Court to revisit its earlier holding that Plaintiff’s limited jurisdictional

discovery is appropriate under the test articulated in Beale v. Husqvarna AB, No. 20-CV-80909,

2020 WL 6472615, at *2 (S.D. Fla. Aug. 3, 2020). See ECF No. [94] at 3–4; ECF No. [110] at 19–

44; cf. ECF No. [106]. They also argued that the Court may not have subject-matter jurisdiction

over this matter because Plaintiff has not properly alleged its own citizenship in the Second

Amended Complaint.1 See ECF No. [34] at 2; ECF No. [110] at 19–44; cf. ECF No. [106].

Recognizing that it cannot issue a discovery ruling — or take any other merits-related action — if

it lacks subject-matter jurisdiction, the Court ordered Plaintiff and the America1 Parties to submit

supplemental briefs addressing whether Plaintiff’s allegations in the Second Amended Complaint

are sufficient to invoke diversity jurisdiction. See ECF No. [110] at 58–61.

1 At the time of the Hearing, the Second Amended Complaint was the operative one. See ECF No. [34].

Plaintiff has since filed its Third Amended Complaint. See ECF No. [111]. Relevant here, the Third Amended

The Court took all three Oral Motions under advisement until it resolved the subject-matter

jurisdiction issue. See ECF No. [110] at 61. The Court received the supplemental briefs on May

2, 2025. See ECF No. [107]; ECF No. [108]. After reviewing those briefs, the Court determined it

required additional information to resolve the subject-matter jurisdiction issue, so it ordered

Plaintiff to “file a complete copy of the ‘Memorandum and Articles of Association of Saray Value

Fund SPC dated 31 January 2024’ on the docket,” as that document was “referenced and described

in the affidavit attached to Plaintiff’s brief” but not included with the brief. See ECF No. [118].

The Court received the Memorandum and Articles of Association of Saray Value Fund SPC (the

“Articles of Association”) on May 22, 2025. See ECF No. [125]. Having now considered the

Notice, arguments made at the Hearing, supplemental briefs, and Articles of Association, it is

ORDERED and ADJUDGED as follows:

I. Subject-Matter Jurisdiction

The Court begins, as it must, with subject-matter jurisdiction. See, e.g., Univ. of S. Ala. v.

Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999) (recognizing “a federal court is powerless to

act without jurisdiction” and therefore “is obligated to inquire into subject matter jurisdiction sua

sponte whenever it may be lacking”). As noted, the America1 Parties contend the Court may not

have subject-matter jurisdiction here because Plaintiff has not properly alleged its own citizenship.

Although counsel for the America1 Parties highlighted what he viewed as deficiencies with the

jurisdictional allegations in the Second Amended Complaint, see ECF No. [110] at 34–35, the Court

will examine the Third Amended Complaint, which is the currently operative one, see ECF No. [111];

ECF No. [114].

A. Governing Law

Federal courts are courts of limited subject-matter jurisdiction. Hensley v. Hartford Cas. Ins.

Co., 113 F.4th 1327, 1332 (11th Cir. 2024) (quotation marks omitted). “A district court can hear a

case only if it has at least one of three types of subject matter jurisdiction: (1) jurisdiction under a

specific statutory grant; (2) federal question jurisdiction pursuant to 28 U.S.C. § 1331; or (3) diversity

jurisdiction pursuant to 28 U.S.C. § 1332(a).” Id. (quotation marks omitted); see also Travaglio v.

Am. Exp. Co., 735 F.3d 1266, 1268 (11th Cir. 2013) (“[I]f a complaint’s factual allegations do not

assure the court it has subject matter jurisdiction, then the court is without power to do anything in

the case.”). At issue here is diversity jurisdiction under § 1332(a), as that is the jurisdictional basis

the Third Amended Complaint alleges. See ECF No. [111] at 2.

“When a plaintiff files suit in federal court, she must allege facts that, if true, show federal

subject matter jurisdiction over her case exists. Those allegations, when federal jurisdiction is

invoked based upon diversity, must include the citizenship of each party.” Travaglio, 735 F.3d at

1268 (citation omitted). That is because “the diversity jurisdiction statute requires complete

diversity,” see, e.g., Orchid Quay, LLC v. Suncor Bristol Bay, LLC, 178 F. Supp. 3d 1300, 1303 (S.D.

Fla. 2016), which means “no plaintiff” can be “a citizen of the same state as any defendant,” see

Travaglio, 735 F.3d at 1268; 28 U.S.C. § 1332(a)(1) (requiring the action to be between “citizens of

different States”), and “an alien on both sides of a dispute will defeat jurisdiction,” see Caron v. NCL

(Bahamas) Ltd., 910 F.3d 1359, 1364 (11th Cir. 2018); 28 U.S.C. § 1332(a)(2) (requiring the action

to be between “citizens of a State and citizens or subjects of a foreign state”). “The party commencing

suit in federal court . . . has the burden of establishing, by a preponderance of the evidence, facts

supporting the existence of federal jurisdiction.” Underwriters at Lloyd’s, London v. Osting-Schwinn,

613 F.3d 1079, 1085 (11th Cir. 2010); see also Hertz Corp. v. Friend, 559 U.S. 77, 96–97 (2010)

(“When challenged on allegations of jurisdictional facts, the parties must support their allegations by

competent proof.”).

“For well over a century, federal law has drawn a sharp distinction between corporations and

virtually every other form of association for purposes of determining diversity of citizenship.”

Osting-Schwinn, 613 F.3d at 1086. “On the one hand, corporations are considered legal persons

whose citizenship does not depend on that of their shareholders.” Id. As separate legal persons,

corporations are “presumed conclusively to be citizens” of their “State of incorporation.” See Carden

v. Arkoma Assocs., 494 U.S. 185, 188 (1990) (quotation marks omitted). “Additionally, ‘a

corporation shall be deemed to be a citizen of every State and foreign state by which it has been

incorporated and of the State or foreign state where it has its principal place of business’ for diversity

jurisdiction purposes.” Dome v. Celebrity Cruises Inc., 595 F. Supp. 3d 1212, 1220 (S.D. Fla. 2022)

(quoting 28 U.S.C. § 1332(c)(1)). Congress codified these corporate jurisdictional principles in 28

U.S.C. § 1332(c): “a corporation shall be deemed to be a citizen of every State and foreign state by

which it has been incorporated and of the State or foreign state where it has its principal place of

business.” See 28 U.S.C. § 1332(c)(1).2

“On the other hand, unincorporated associations do not themselves have any citizenship, but

instead must prove the citizenship of each of their members to meet the jurisdictional requirements

of 28 U.S.C. § 1332.” Osting-Schwinn, 613 F.3d at 1086. “Furthermore, no matter the particular

features of an unincorporated entity, it has long been the tradition of the common law to treat as legal

persons only incorporated groups and to assimilate all others to partnerships, which must plead the

citizenship of each member.” Id. (cleaned up). Indeed, the Supreme Court has “reject[ed] the

contention that to determine, for diversity purposes, the citizenship of an artificial entity, the court

may consult the citizenship of less than all of the entity’s members” and instead has “adhere[d] to

[its] oft-repeated rule that diversity jurisdiction in a suit by or against the entity depends on the

citizenship of all the members.” See Carden, 494 U.S. at 195 (quotation marks omitted); Americold

Realty Tr. v. Conagra Foods, Inc., 577 U.S. 378, 384 (2016) (“When we last examined the ‘doctrinal

wall’ between corporate and unincorporated entities in [Carden], we saw no reason to tear it down.”).

Because the Supreme Court has maintained the sharp division between corporate and non-

corporate entities in this context, “for purposes of diversity of citizenship, a limited partnership is a

citizen of each state in which any of its partners, limited or general, are citizens.” Rolling Greens

MHP, L.P. v. Comcast SCH Holdings L.L.C., 374 F.3d 1020, 1021 (11th Cir. 2004). The same is

true for a limited liability company. See id. at 1022. Congress has not codified the jurisdictional

principles that apply to non-corporations. See generally 28 U.S.C. § 1332. Nor has it added any

non-corporation entities to the “special jurisdictional rule” in § 1332(c), despite the Supreme Court’s

clearly stated position that any such expansion is Congress’ to enact. See Americold, 577 U.S. at 384

(declining “to apply the same rule to an unincorporated entity that applies to a corporation—namely,

to consider it a citizen only of its State of establishment and its principal place of business” and

reaffirming “it is up to Congress if it wishes to incorporate other entities into” § 1332(c)’s “special

jurisdictional rule”).

Given the still-standing doctrinal wall between corporate and unincorporated entities for

jurisdictional purposes, see Americold, 577 U.S. at 384; Carden, 494 U.S. at 190, a court must first

determine what type of business association an entity is before it can evaluate whether diversity

jurisdiction exists. Making that determination can be challenging, particularly when the entity was

created outside of the United States. See BouMatic, LLC v. Idento Operations, BV, 759 F.3d 790,

791 (7th Cir. 2014) (“Classification of a foreign business entity can be difficult because other nations

may use subsets of the characteristics that distinguish corporations from other business entities in the

United States.” (citation omitted)). While Congress, the Supreme Court, and the Eleventh Circuit

have all explained how courts should determine the citizenship of various business associations for

diversity jurisdiction purposes, see 28 U.S.C. § 1332(c)(1); Carden, 494 U.S. at 188–95; Osting-

Schwinn, 613 F.3d at 1086, none of them has yet articulated how courts should determine in the first

instance what kind of business association a non-U.S. entity is — that is, if a business entity created

outside the United States is a corporation or not a corporation for jurisdictional purposes.

Four of our sister Circuits, however, have addressed this question. See, e.g., Starstone Ins. SE

v. City of Chicago, 133 F.4th 764, 767 (7th Cir. 2025); Jet Midwest Int’l Co., Ltd v. Jet Midwest Grp.,

LLC, 932 F.3d 1102, 1105 (8th Cir. 2019); Berik Stiftung v. Plains Mktg., L.P., 603 F.3d 295, 298–

99 (5th Cir. 2010); Cohn v. Rosenfeld, 733 F.2d 625, 629 (9th Cir. 1984). Two of them, the Ninth

and Fifth Circuits, “have adopted a ‘juridical person’ test, under which if the business entity is treated

as a legal person in its home country, it is a citizen of that jurisdiction for diversity purposes” (the

“juridical person test”). See Ekopel D.O.O. v. Citibank, N.A., 717 F. Supp. 3d 17, 26 (D.D.C. 2024);

Berik Stiftung, 603 F.3d at 298–99; Cohn, 733 F.2d at 629. The other two, the Seventh and Eighth

Circuits, “consider specific aspects of the foreign business entity to determine whether its closest

domestic analogue is a corporation versus an LLC or other unincorporated association — and, if the

latter, the foreign business entity takes the citizenship of each of its members” (the “specific attributes

test”). Ekopel, 717 F. Supp. 3d at 26; Starstone, 133 F.4th at 767; Jet Midwest, 932 F.3d at 1105.

Like other courts in this District have, the Court “finds it much more likely the Eleventh

Circuit would agree with the course taken by the Seventh Circuit . . . than that taken by the Ninth

Circuit.” See Bradshaw Constr. Corp. v. Underwriters at Lloyd’s, London, No. 15-24382-CIV, 2016

WL 8739603, at *6 (S.D. Fla. Jan. 8, 2016). That is because the Ninth and Fifth Circuits based their

juridical person approach on a Supreme Court decision, Puerto Rico v. Russell & Co., 288 U.S. 476,

481–82 (1933), that has since been “limited significantly.” See Bradshaw, 2016 WL 8739603, at *6;

Berik Stiftung, 603 F.3d at 298–99; Cohn, 733 F.2d at 628–29. Indeed, the Supreme Court recognized

in Carden that it had “specifically rejected” the Russell approach when litigants “proposed” it in a

later case, see 494 U.S. at 190 (citing Steelworkers v. R.H. Bouligny, Inc., 382 U.S. 145, 151 (1965)),

and the Eleventh Circuit has acknowledged the Supreme Court’s limitation of Russell to the particular

entity “formed under Puerto Rican civil law” it evaluated in that case (a sociedad en comandita), see

Osting-Schwinn, 613 F.3d at 1088 n.5 (calling Russell the “only real exception to the Carden rule”).

As a foundational matter, the Seventh Circuit’s specific attributes test recognizes that how

the forming country labels the entity does not matter to the jurisdictional analysis. See Starstone, 133

F.4th at 767 (“[N]ames are not dispositive.”). Nor does “the body of law under which the form was

created.” See id. Instead, “[w]hat matters to the definition in § 1332(c)(1) is whether the entity, no

matter what it is called and no matter where it is located, has the attributes of a ‘corporation’ as

understood in the law of the United States.” Id. The Seventh Circuit identified those “essential”

attributes as “perpetual existence with a legal personality distinct from that of investors, shares that

are tradeable (in principle, at least), and limited liability.” Id.

With its holding in Starstone, the Seventh Circuit adhered to the standard it has applied to

this question since 2003, though it described the relevant attributes slightly differently then. See Lear

Corp. v. Johnson Elec. Holdings Ltd., 353 F.3d 580, 582–83 (7th Cir. 2003) (analyzing a Bermuda

entity limited by shares to see if its “legal attributes” would “classify it as” a U.S. corporation for

diversity jurisdiction purposes and holding it was “equivalent in all legally material respects to a

corporation under state law”). In Lear, the Seventh Circuit held that a Bermuda entity was a

corporation for diversity jurisdiction purposes because it was “an entity with perpetual existence,

governed by a Board of Directors, able to issue tradable shares . . . , and treated as independent of its

equity investors—who are neither taxable on its profits nor liable for its debts.” Id. at 583. A few

years later in BouMatic, the Seventh Circuit held a Netherlands entity was a corporation for diversity

jurisdiction purposes because it had “the standard elements of ‘personhood’ (perpetual existence, the

right to contract and do business in its own name, and the right to sue and be sued) and” issued

“shares to investors who enjoy limited liability (which is to say, are not liable for the business’s

debts).” 759 F.3d at 791. It also noted the entity’s shares could “be bought and sold, subject to

restrictions that the business declares,” which “is a common device” for U.S. “close corporations

too.” Id.

In 2019, the Eighth Circuit joined the Seventh Circuit in using the specific attributes test. See

Jet Midwest, 932 F.3d at 1105. In Jet Midwest, while addressing the “citizenship of a Hong Kong

limited company,” the Eighth Circuit “adopt[ed] the approach employed by the Seventh Circuit for

considering the citizenship of foreign entities.” Id. The Eighth Circuit noted the need to “account

for linguistic and other differences between domestic and foreign business laws and the fact that other

nations do not necessarily call entities that are in effect corporations by that name,” and it took the

relevant attributes from BouMatic. Id. Specifically, it considered whether the Hong Kong company

had perpetual existence, the right to contract and do business in its own name, the right to sue and be

sued, the ability to issue shares to investors who enjoy limited liability, and the ability to issue shares

that could be bought and sold, subject to restrictions that the business declares. Id.

B. Allegations Supporting Diversity Jurisdiction

In the Third Amended Complaint, Plaintiff alleges it is “a citizen of Texas, the United Arab

Emirates, and the Cayman Islands.” See ECF No. [111] at 2. To explain how it arrived at that

conclusion, Plaintiff further alleges that it “is a Delaware limited partnership” and that its “general

partner, Euclid Partners GP LLC, is a Delaware limited liability company.” See ECF No. [111] at 3.

“Euclid Partners GP LLC’s members are Howard Siegel and Adam Siegel, both of whom are

domiciled in Texas.” See ECF No. [111] at 3. Plaintiff alleges that its “remaining partners, Core

Holdings US I LLC, Core Holdings US II LLC, Core Holdings US III LLC, Core Holdings US IV

LLC, and Core Holdings US V LLC” are “each Delaware limited liability companies” that “each

have one sole member, Saray Value Fund SPC.” See ECF No. [111] at 3. Saray Value Fund SPC

(“Saray”), is a “Cayman Islands exempted segregated portfolio company (‘SPC’) with its principal

place of business in Dubai, United Arab Emirates.” See ECF No. [111] at 3. Plaintiff alleges that,

for diversity jurisdiction purposes, Saray “should be treated as” a corporation. See ECF No. [111] at

3.

To support that allegation, Plaintiff alleges some of the general characteristics of Cayman

Islands SPCs. See ECF No. [111] at 3. According to Plaintiff, SPCs are “incorporated” under “§ 5

of the Cayman Islands Companies Act.”3 See ECF No. [111] at 3. A Cayman Islands SPC “is a

single legal entity with a perpetual existence and a legal personality distinct from that of investors,

the ability to issue shares that are tradeable, and limited liability.” See ECF No. [111] at 3. Plaintiff

also alleges some characteristics specific to Saray, although Plaintiff implies that all Cayman Islands

SPCs can bear those characteristics. See ECF No. [111] at 3. Saray “may sue or be sued in its own

name,” “may enter contracts,” can “issue shares that can be tradeable,” “limits the liability of its

shareholders,” “is governed by a board of directors,” and “holds general meetings of shareholders.”

See ECF No. [111] at 3. Plaintiff alleges those characteristics of Saray, and Cayman Islands SPCs

in general, match up with “the essential attributes” and “material features of a United States

corporation.” See ECF No. [111] at 3.

As for Defendants, Plaintiff alleges they are “citizens of Florida, California, and Alabama.”

See ECF No. [111] at 2. Defendants have not admitted or denied Plaintiff’s jurisdictional allegations

as to their own citizenship or Plaintiff’s citizenship because they have not yet answered the Third

Amended Complaint. See ECF No. [121]; ECF No. [122]; ECF No. [127]. But the America1 Parties’

supplemental brief provides additional characteristics of Cayman Islands SPCs, including that they

“can create and operate one or more portfolios which are segregated from each other, with the benefit

of statutory segregation of assets and liabilities between portfolios.” See ECF No. [108] at 8. Those

portfolios are “not considered” separate legal entities from the SPC itself but still must “be separately

identified or designated.” See ECF No. [108] at 8 (quoting Cayman Is. Companies Act §§ 216, 221

3 Plaintiff also alleges that “in the context of formation in particular, and the terms company and corporation

(2025)). And the “assets and liabilities of each” portfolio are attributable only to that specific

portfolio and, in some circumstances, the general SPC; they “do not extend to” any other portfolio.

See ECF No. [108] at 8–9.

C. Discussion

As noted above, the Court must begin by determining what type of business association Saray

is before it can evaluate whether diversity jurisdiction exists here. To do that, the Court will apply

the specific attributes test used by the Seventh and Eighth Circuits. That test looks at “whether the

entity, no matter what it is called and no matter where it is located, has the attributes of a ‘corporation’

as understood in the law of the United States.” See Starstone, 133 F.4th at 767. The attributes

“essential” to a U.S. corporation, according to the Seventh and Eighth Circuits, are: (1) perpetual

existence; (2) a legal personality distinct or independent from that of its investors, shown through

such actions as the right to contract, do business, sue, and be sued in its own name; (3) being governed

by a Board of Directors; (4) investors who enjoy limited liability, which means they are not taxed on

the entity’s profits or liable for its debts; (5) the ability to issue shares that are tradeable (in principle,

at least) and may be bought and sold (subject to the entity’s restrictions). See id.; Jet Midwest, 932

F.3d at 1105; BouMatic, 759 F.3d at 791; Lear, 353 F.3d at 582–83; cf. Bradshaw, 2016 WL

8739603, at *6.

Read together with the Cayman Islands Companies Act (which lays out the general

characteristics of Cayman Islands SPCs) and Saray’s Articles of Association (which memorialize its

specific characteristics), the Third Amended Complaint sufficiently alleges that Saray has the

essential attributes of a United States corporation. See Cayman Is. Companies Act (2025),

https://www.cima.ky/upimages/lawsregulations/CompaniesAct2025Revision_1738876914.pdf;

ECF No. [111] at 2–3; ECF No. [125]. First, it alleges Saray “is a single legal entity with a perpetual

existence.” See ECF No. [111] at 3; Starstone, 133 F.4th at 767. Second, it alleges Saray has “a

legal personality distinct from that of investors,” “may sue or be sued in its own name,” and “may

enter contracts.” See ECF No. [111] at 3; BouMatic, 759 F.3d at 791. Third, it alleges Saray “is

governed by a board of directors” and “holds general meetings of shareholders.” See ECF No. [111]

at 3; Lear, 353 F.3d at 582–83. Fourth, it alleges Saray “limits the liability of its shareholders.”4 See

ECF No. [111] at 3; Starstone, 133 F.4th at 767; Jet Midwest, 932 F.3d at 1105; BouMatic, 759 F.3d

at 791; Lear, 353 F.3d at 582–83. Fifth, it alleges Saray has “the ability to issue shares that can be

tradeable.” See ECF No. [111] at 3; Starstone, 133 F.4th at 767; Jet Midwest, 932 F.3d at 1105;

BouMatic, 759 F.3d at 791; Lear, 353 F.3d at 582–83.

Because those allegations satisfy every factor of the specific attributes test, the Court finds

that Saray should be treated as a corporation for purposes of § 1332(c).5 And as a corporation, Saray

is a citizen of every State and foreign state by which it has been incorporated and of the State or

foreign state where it has its principal place of business. See Carden, 494 U.S. at 188; Dome, 595 F.

4 To the extent the America1 Parties’ supplemental brief advances a factual challenge to subject-matter

jurisdiction, see Stalley ex rel. U.S. v. Orlando Reg’l Healthcare Sys., Inc., 524 F.3d 1229, 1233 (11th Cir.

2008) (explaining that “a factual attack on a complaint challenges the existence of subject matter jurisdiction

using material extrinsic from the pleadings, such as affidavits or testimony”), the Court notes the additional

attributes of Cayman Islands SPCs the America1 Parties list also support a conclusion that Saray should be

treated as a corporation for § 1332(c) purposes, as they describe ways in which SPCs limit the liability of their

investors. See ECF No. [108] at 8–9 (noting that Cayman Islands SPCs “can create and operate one or more

portfolios which are segregated from each other, with the benefit of statutory segregation of assets and

liabilities between portfolios” and that the “assets and liabilities of each” portfolio are attributable only to that

specific portfolio and, in some circumstances, the general SPC but “do not extend to” any other portfolio).

The other arguments the America1 Parties advance — that Cayman Islands SPCs are more like Series LLCs

than corporations and that the IRS does not consider Cayman Islands SPCs to be corporations for tax purposes,

see ECF No. [108] at 9–10 — do not change that fact.

5 Although the specific attributes test does not consider how Cayman Islands law labels an SPC, the Court

notes that the Companies Act itself supports a conclusion that SPCs should be treated as corporations. In the

Companies Act, SPCs are defined as a particular type of “exempted company,” see Cayman Is. Companies

Act § 212, and companies that file a “memorandum of association” and register in compliance with the Act

“form an incorporated” entity, see id. § 5. By contrast, the Cayman Islands Limited Liability Companies Act

(“LLC Act”) explains how to form that kind of unincorporated entity. See Cayman Is. Limited Liability

Companies Act (2025), https://legislation.gov.ky/cms/images/LEGISLATION/PRINCIPAL/2016/2016-

0002/LimitedLiabilityCompaniesAct_2025%20Revision.pdf. The LLC Act, which makes many references

to companies “incorporated under the Companies Act (2025 Revision),” see, e.g., Cayman Is. Limited Liability

Supp. 3d at 1220; 28 U.S.C. § 1332(c)(1). As discussed, Saray is incorporated in the Cayman Islands,

ECF No. [111] at 3, so it is a citizen of the Cayman Islands for § 1332(c) purposes. Saray has its

principal place of business in in Dubai, United Arab Emirates, ECF No. [111] at 3, so it is also a

citizen of the UAE for § 1332(c) purposes. Finally, the members of Plaintiff’s general partner are

individuals domiciled in Texas, see ECF No. [111] at 3, which makes Plaintiff a citizen of Texas as

well, see Osting-Schwinn, 613 F.3d at 1086. That means Plaintiff is indeed “a citizen of Texas, the

United Arab Emirates, and the Cayman Islands,” as it alleges. See ECF No. [111] at 2.

Plaintiff further alleges that Defendants are “citizens of Florida, California, and Alabama.”

See ECF No. [111] at 2. Because Plaintiff is not a citizen of the same State as any Defendant,

complete diversity exists. See Orchid Quay, LLC, 178 F. Supp. 3d at 1303; Travaglio, 735 F.3d at

1268. And because complete diversity exists, the Court has subject-matter jurisdiction over this case.

See Orchid Quay, LLC, 178 F. Supp. 3d at 1303; Travaglio, 735 F.3d at 1268. Having confirmed

that it has subject-matter jurisdiction, the Court moves to the merits of the motions.

II. Motion for Reconsideration and Motion to Compel Jurisdictional Discovery

During the Hearing, counsel for the America1 Parties asked the Court to reconsider under

Federal Rules of Civil Procedure 59 and 60 its earlier ruling that Plaintiff’s limited jurisdictional

discovery is appropriate. See ECF No. [94] at 3–4; ECF No. [110] at 19–44; cf. ECF No. [106].

Counsel argued the America1 Parties are not “involved in the foundation” of Plaintiff’s claim, which

makes the jurisdictional discovery Plaintiff sought (and the Court granted) in an earlier hearing

outside the scope of what is permitted under Rule 26. See ECF No. [110] at 23. When the Court

noted that argument “could have and should have been raised” at the earlier discovery hearing,

counsel for the America1 Parties explained that he did not make those arguments because he was not

yet part of the case when the Court issued that earlier ruling. See ECF No. [110] at 24.

Prompted by the Court’s questions, counsel confirmed the America1 Parties sought

reconsideration based on “manifest injustice.” See ECF No. [110] at 24. Specifically, counsel argued

Plaintiff’s “representations” to the Court that the then-operative Second Amended Complaint

referenced both America1 entities were false because only America1 Holdings, LLC was referenced

and America1 Industries, LLC was not. See ECF No. [110] at 24–25. Counsel also argued Plaintiff’s

claims “relate to the breach of the purchase and sale agreement of Amerant Bank’s promissory note,”

which was with SB Ecliptica, not the America1 Parties. See ECF No. [110] at 24–25. And he argued

SB Ecliptica had never assigned that promissory note to anyone, including the America1 Parties,

despite two potentially contradictory statements about an assignment. See ECF No. [110] at 12–13,

19, 27.

Although the Court and counsel for the America1 Parties discussed the Motion for

Reconsideration using the standards applicable to Rules 59 and 60, the Eleventh Circuit recently

clarified it is actually Rule 54 that applies when a party asks a trial court to reconsider a non-final

order. See Hornady v. Outokumpu Stainless USA, LLC, 118 F.4th 1367, 1379 (11th Cir. 2024)

(recognizing its precedent had been “less than clear” about “what standard of review district courts

should employ when faced with” a motion for reconsideration “in the context of a non-final order”).

In Hornady, the Court held that Rule 54(b) “governs a district court’s reconsideration of interlocutory

orders” and that the standards of Rule 59(e) and Rule 60(b) “do not apply” because those Rules

“come into play” only “after a final, appealable judgment is entered.” Id. It explained that under

Rule 54(b) “district courts retain plenary power to reconsider an interlocutory order before the entry

of final judgment.” Id.; see also Fed. R. Civ. P. 54(b) (explaining that an order “that adjudicates

fewer than all the claims or the rights and liabilities of fewer than all the parties . . . may be revised

at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and

liabilities”). For that reason, when “a district court enters a non-final order, it should evaluate

motions to reconsider that order under the standards inherent in Rule 54(b) — plenary authority to

reconsider, revise, alter or amend a non-final order before the entry of final judgment.” Hornady,

118 F.4th at 1379–80 (quotation marks omitted).

Still, while district courts “enjoy plenary power to reconsider non-final rulings, they need not

employ plenary review when doing so.” Id. at 1380 (emphasis in original). “[I]n most instances

district courts should hesitate before revisiting their earlier interlocutory order” because “important

interests of finality, stability, and predictability” underlie “justifiable caution.” Id. The “district

court’s decision to reconsider an interlocutory order” is “committed to its sound judgment,” though

the court should use the law-of-the-case doctrine as a guide because it “expresses the practice of

courts generally to refuse to reopen what has been decided.” See id. (quotation marks omitted)

(noting that the law of the case doctrine operates “with more or less force depending on the stage of

litigation” and encourages courts to adhere to “the general point that when a court decides upon a

rule of law, that decision should continue to govern the same issues in subsequent stages in the same

case” (quotation marks omitted)).

That is why it is not enough for a movant to “simply rehash[] arguments already considered

and rejected” and why “the more time that has passed between a district court’s ruling and a party’s

motion to reconsider that ruling, the less willing the court ought to be to entertain the party’s request.”

See id. at 1381 (noting that parties must “be able to rely on the rulings that progressively direct

proceedings toward trial”). Ultimately, “[c]ommon sense, not a rigid set of rules, governs.” See id.

at 1380–81 (quotation marks omitted).

Even so, if the movant can “meet a significantly higher showing for reconsideration — for

example, the standards applicable to Rules 59(e) or 60(b), or the exceptions to the mandate rule —

the district court should not hesitate to revisit its prior ruling.” Id. at 1381. “But just because a

movant fails to meet these higher standards does not mean that reconsideration cannot be had — the

district court may still have room to conclude that reconsideration is appropriate.” Id. “In short,

district courts have discretion to revisit their prior interlocutory orders, considering both the weight

of the moving party’s arguments and the disruption that a change would cause in light of the time

that has passed since the decision was initially made.” Id.

Applying that standard here, the Court declines to reconsider its earlier ruling. Although

counsel for the America1 Parties did not simply rehash the arguments that were made in the earlier

discovery hearing, he also did not present any new facts or law that justify changing the earlier ruling.

The America1 Parties’s Motion for Reconsideration relies primarily on their contention that Amerant

never assigned its promissory note, which means that discovery into entities that may have been the

intended assignees (like the America1 Parties) is beyond the scope of the currently pleaded claims.

But as explained at the Hearing, Plaintiff has a good reason for its belief that SB Ecliptica may have

assigned its promissory note to the America1 Parties: an attorney for SB Ecliptica represented as

much in an email to Amerant. See ECF No. [111] at 12–13; ECF No. [104-3] at 112–13. While that

attorney has since corrected that representation with a declaration averring he was mistaken, see ECF

No. [104-3] at 112, that correction does not make Plaintiff’s earlier belief unreasonable. For that

reason, the Court declines to exercise its plenary power to reconsider its earlier ruling that Plaintiff’s

requested jurisdictional discovery is permissible. Accordingly, the Motion for Reconsideration, ECF

No. [130], is DENIED.

Having denied the America1 Parties’ Motion for Reconsideration, it follows that Plaintiff’s

Motion to Compel Jurisdictional Discovery should be granted. As discussed at the Hearing,

Plaintiff’s current theory of the case is that SB Ecliptica assigned the promissory note it purchased

from Amerant to one or more third parties. See ECF No. [110] at 22–27. Given the information it

has received so far, Plaintiff reasonably believes the America1 Parties may be (or at some point were

intended to be) the assignees. See ECF No. [110] at 12–13. At the time of the Hearing, Plaintiff was

still assessing whether to join the America1 Parties as Defendants in this action. To do so properly,

Plaintiff needed the jurisdictional discovery. Plaintiff also needed the jurisdictional discovery to

respond to Defendant Amerant’s Motion to require joinder of necessary third parties. See ECF No.

[94]; ECF No. [60].

Plaintiff’s discovery requests to the America1 Parties are designed to ascertain information

about their citizenship to evaluate whether such joinder would be possible without destroying

diversity jurisdiction. See ECF No. [110] at 22–27. That is why the Court granted Plaintiff’s Motion

to Compel at the first hearing, see ECF No. [94], and it is it why Plaintiff’s current Motion to Compel

Jurisdictional Discovery is due to be granted now. Although Plaintiff has since joined the America1

Parties as Defendants, see ECF No. [111], the jurisdictional discovery remains relevant because if

the discovery reveals that the America1 Parties’ citizenships would destroy diversity jurisdiction,

Plaintiff may decide to move for leave to amend the complaint again so that it can drop them from

the lawsuit. Accordingly, Plaintiff’s Motion for Jurisdictional Discovery, ECF No. [128], is

GRANTED. The America1 Parties SHALL PRODUCE the documents set out in the Court’s earlier

discovery order, see ECF No. [94] at 4, no later than June 13, 2025.6

III. Motion to Compel Merits Discovery

Finally, the Court turns to Plaintiff’s Motion to Compel Merits Discovery. In that Motion,

Plaintiff asks the Court to compel Bartushev to produce “non-privileged documents responsive to the

requests in the subpoena served on him concerning the transactions referenced in the complaint and

the business relationship between the entities to which he is connected and the named Defendants in

the action, including Amerant, Alliance Metals, LLC, Technocon, LLC, Alliance Metals Alabama,

LLC, Larry Y. Gitman, and/or Jacob Gitman.” See ECF No. [104] at 2. Plaintiff notes that the

Motion to Compel Merits Discovery “involves Requests Nos. 1, 2, 4, 5, and 6 in the subpoena served

on Mr. Bartushev.” See ECF No. [104] at 2.

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According to Plaintiff, Bartushev objects to these Requests because he was “issued the

subpoena in his individual capacity” instead of as the principal for the entities he controls (like SB

Ecliptica).7 See ECF No. [110] at 15–18. Plaintiff contends the Court should overrule that objection

because the distinction is academic. See ECF No. [110] at 15–18. Bartushev “is the principal of

these entities” and “has custody, control, or possession of these documents.” See ECF No. [110] at

15–18. Counsel for the America1 Parties, which include Bartushev, argues Plaintiff’s discovery

requests “are way outside the” permissible scope of Rule 26 because they ask “for all the agreements

between Alliance and the America entities and all the communications” without any limitation to

documents related to the promissory note from Amerant. See ECF No. [110] at 33. He also argues

the discovery is “irrelevant” and “not appropriate under Rule 26.” See ECF No. [110] at 33. In

reply, Plaintiff reiterates that the discovery is permissible under Rule 26 because it relates to

“entities that are referenced in the complaint as conspiring, acting in concert together to take away”

Plaintiff’s property (that is, to Plaintiff’s conversion and tortious interference claims). See ECF No.

[110] at 47–49.

The Court agrees with Plaintiff. As already noted, Rule 26 provides that parties “may obtain

discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and

proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). The discovery requests to Bartushev

meet these requirements. See ECF No. [104-2] at 12–15. First, as Plaintiff noted, the information

sought is relevant to entities the Third Amended Complaint alleges conspired to interfere with an

agreement Plaintiff had with Amerant. See ECF No. [111] at 19–26. For that reason, it is relevant

to Plaintiff’s conversion and tortious inference claims. See ECF No. [111] at 19–26; Fed. R. Civ.

P. 26(b)(1). Second, the America1 Parties have not objected based on undue burden. See ECF No.

7 At the Hearing, Plaintiff also addressed Bartushev’s objection that he is not yet a party to this action, see

[110] at 15–18; Fed. R. Civ. P. 26(b)(1). And third, the information sought is proportional to the

needs of the case because it is properly limited to the transaction underlying the Third Amended

Complaint and the entities alleged (or reasonably believed) to have been involved in that

transaction. See ECF No. [104-2] at 12–15; Fed. R. Civ. P. 26(b)(1).

Although Rule 45 subpoenas are not the discovery device typically used to get documents

from a party — that distinction belongs to requests for production under Rule 34 — neither Rule

26 nor Rule 45 prohibits issuing subpoenas to parties. See generally Fed. R. Civ. P. 26; Fed. R.

Civ. P. 45. Similarly, the Parties have not provided, and the Court has not found, any case law

interpreting those Rules to require that parties use Rule 34 instead of Rule 45 to obtain documents

from another party in all situations. See, e.g., Manzo-Pianelli v. United Servs. Auto. Ass’n, No. 15-

61324, 2015 WL 12806618, at *1 (S.D. Fla. Nov. 3, 2015) (“The Eleventh Circuit has not expressly

addressed whether a Rule 45 subpoena may be properly served on a party.”). Instead, case law

indicates only that “a Rule 45 subpoena cannot circumvent other discovery rules that apply to a

party.” See id.; Progressive Emu Inc. v. Nutrition & Fitness Inc., 785 F. App’x 622, 629 (11th Cir.

2019) (noting a party had “circumvented the discovery process” by issuing a subpoena “on the eve

of trial seeking documents it failed to diligently pursue during discovery”); Antech Diagnostics,

Inc. v. Posner, No. 17-80185-CV, 2017 WL 6948590, at *1 (S.D. Fla. Nov. 14, 2017) (“A Rule 45

subpoena duces tecum cannot be used as a form of discovery to circumvent deadlines.”);Tara

Prods., Inc. v. Hollywood Gadgets, Inc., No. 09-61436-CIV, 2014 WL 1047411, at *3 (S.D. Fla.

Mar. 18, 2014) (noting that a subpoena may not be used to “do an ‘end-run’ around the discovery

rules that apply to a party”).

When courts have prohibited parties from using Rule 45 subpoenas to get documents from

another party, they usually have done so because the discovery deadline has passed, and the party

is attempting “to improperly reopen discovery.” See, e.g., Prior v. Neurospine Inst. LLC, No. 23-

60676-CIV, 2024 WL 4564727, at *2 (S.D. Fla. Aug. 20, 2024). Another common scenario involves

a party issuing a Rule 45 subpoena before the close of discovery but when fewer than 30 days

remain in the discovery period, as parties have 30 days to respond to Rule 34 requests for production

but only 14 days to respond to Rule 45 subpoenas. See, e.g., Tara Prods., Inc., 2014 WL 1047411,

at *4 (“It is evident that the Judgment Creditor served the subpoena duces tecum (which gave

Impleaded Party Lakewood only 14 days to produce the requested documents) to circumvent the

30–day response time afforded a party under Rule 34. . . . Had the Judgment Creditor afforded

Lakewood the required 30 days, the date for the document production would have been October 22,

2012, well after the October 8, 2012 discovery deadline.”). This case presents neither of those

scenarios.

Here, Plaintiff served Rule 45 subpoenas on the America1 Parties before they became

Defendants in this lawsuit. When the subpoenas were served, then, Rule 45 was the appropriate

(indeed, the only) mechanism for requesting documents from the America1 Parties. And the

discovery period in this case does not end until October 28, 2025. See ECF No. [50] at 2. For those

reasons, there is no indication Plaintiff was trying to circumvent or subvert discovery rules or

deadlines when it issued the Rule 45 subpoenas.

Of course, now that the America1 Parties are Defendants, Plaintiff could serve them with

Rule 34 requests for production to obtain the documents it originally sought through Rule 45

subpoenas when they were non-parties. In fact, some courts in this District have required plaintiffs

to do so when their “use of Rule 45 circumvented the Rule 34 procedures.” See, e.g., Manzo-

Pianelli, 2015 WL 12806618, at *2 (noting that “[b]y proceeding under Rule 45 instead of Rule 34,

Plaintiff has circumvented the requirement of Rule 34 that a party has 30 days to respond to a

request for production” and holding that “Plaintiff may proceed under Rule 34” because it could

use that Rule “to obtain the non-privileged documents sought”). But the America1 Parties have

CASE NO. 25-CV-20647-BLOOM/Elfenbein

already responded to the Rule 45 subpoenas with extensive procedural and substantive objections.

See ECF No. [104-2] at 16-28, 61-64, 73-76, 93-105. So there is also no indication that they have

not had adequate time to respond because of Rule 45’s shorter response period. See Manzo-Pianelli,

2015 WL 12806618, at *2 (noting that entities have 14 days to respond under Rule 45). Finally,

the Parties have not provided, and the Court has not found, any authority indicating that pending

Rule 45 subpoenas to non-parties become moot when those non-parties are added as parties to the

case.

In sum, because the Rule 45 subpoenas were proper when issued, request documents that

are relevant and proportional to the needs of the case, Plaintiff did not issue them to circumvent

Rule 34’s procedures and deadlines, and the Americal Parties were not deprived of their

opportunity to object to the subpoena requests, the Court will enforce them. Accordingly, Plaintiff's

Motion to Compel Merits Discovery, ECF No. [129], is GRANTED. Bartushev SHALL

PRODUCE the documents requested in the subpoena issued to him at ECF No. [104-2] at 12-15,

no later than June 24, 2025.

DONE and ORDERED in Chambers in Miami, Florida on June 9, 2025.

Moly b-—

MARTY FULGUEIRA ELFENBEIN |

UNITED STATES MAGISTRATE JUDGE

Copies to:

Counsel of Record

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