Rules and Preferences; Order Concerning Citizenship of Unincorporated Business Organization

=== Rules and Preferences ===

United States District Court District of New Jersey CHAMBERS OF EDWARD S. KIEL UNITED STATES DISTRICT JUDGE MITCHELL H. COHEN BUILDING UNITED STATES COURTHOUSE 4TH & COOPER STREETS CAMDEN, NJ 08101 856-757-5057 RULES AND PREFERENCES The following shall apply to civil matters assigned to District Judge Edward S. Kiel. Failure to comply with the terms of the following rules and procedures may result in sanctions pursuant to Federal Rule of Civil Procedure (“Rule”) 16(f) and Rule 37. 1. Communications with the Court. All communications to the Court shall be by CM/ECF or by telephone. Absent permission from Chambers or as otherwise provided herein, the Court will not accept or consider communications by fax, mail, or email. Judge Kiel permits communications with his law clerks only as to questions regarding Chambers’ procedures and not as to any substantive matters. 2. Adjournment Requests. Conferences and hearings, whether telephonic or in-person, are normally scheduled with ample notice to the parties. Accordingly, adjournment requests must be made no later than five business days before the scheduled conference or hearing and shall indicate whether all parties consent. 3. Copies. Two copies of all filed papers exceeding 40 pages per individual document shall be provided to Chambers by mail. Exhibits to any papers should be separated with corresponding exhibit tabs. 4. Electronic Submissions. All parties, with the exception of pro se parties, shall electronically file all documents. All filed papers shall be in a text-searchable PDF format as required by Local Civil Rule 5.21(h). Parties are directed to ensure that all supporting documents to a filing are docketed as attachments to the primary document. For example, a notice of motion filed at ECF No. 10, should have the supporting brief filed at ECF No. 10-1 and any further supporting documents at 10-2, 10-3, et. cetera. 5. Pro se Filings. All filings by pro se parties shall be mailed or filed directly with the Clerk’s Office. Documents mailed to the courthouse must be addressed to the Clerk’s Office, NOT Judge Kiel. Pro se parties are found at: directed to the Procedural Guide http://www.njd.uscourts.gov/sites/njd/files/ProSePacket_1.pdf. for Pro Se Litigants 6. Motion Practice. Pre-Motion Procedure. In an effort to resolve cases expeditiously, a party must submit a pre-motion letter, not to exceed three single-spaced pages, requesting leave to file the following motions: (i) motion to dismiss; (ii) motion for a more definite statement; (iii) motion to remand; (iv) motion for change of venue; (v) motion for judgment on the pleadings; and (vi) motion to compel arbitration. The letter must set forth the basis for the anticipated motion and include citations to relevant authority. Within seven days after receipt of this letter, all adversaries must submit a written response, not to exceed three single-spaced pages. No party may submit a reply unless directed by the Court. Affidavits and exhibits are not permitted unless directed by the Court. A proffer by the attorney, however, of the contents of any such affidavit(s) and/or exhibit(s) shall suffice. Failure to file a pre-motion letter may result in the motion being administratively terminated. A party’s submission of a pre-motion letter will toll that party’s time to file its motion (or answer) through the date of the Court’s decision as to whether leave will be granted. The Court reserves the right to hold a conference to determine whether leave will be granted. This procedure does not apply to cases in which the pre-answer motions listed above are filed solely by or against pro se litigant(s) only, or in bankruptcy or social security appeals. Motions for Summary Judgment. Parties may not file an early motion for summary judgment (i.e., prior to the close of fact discovery) without leave from either Judge Kiel or the Magistrate Judge. When seeking leave from Judge Kiel, the moving party must first submit a letter, no longer than three pages, summarizing the party’s substantive argument. Within seven days of the moving party’s letter, the party opposing the motion must submit a letter, no longer than three pages, summarizing the party’s substantive argument in opposition. Parties may not incorporate by reference, in their briefs, their numbered statements of material facts (L.Civ.R. 56.1(a or responses thereto as a substitute for a statement of facts. In other words, briefs submitted as to motions for summary judgment must include a detailed statement of facts. Motions to Seal. Motions to seal documents related to a dispositive issue are to be set before Judge Kiel. A motion to seal must comply with Local Civil Rule 5.3(c) and must include a proposed order and proposed findings of fact and conclusions of law. The proposed order must include reference to the docket entries the party seeks to seal. Counsel shall make every effort to secure the consent of all parties regarding the motion to seal, and the movant shall certify in support of the motion whether all parties consent. Extensions of Time to a Deadline. Extension requests shall be made by letter application, which shall indicate whether all parties consent. Motion Day. The purpose of a motion’s return date or “motion day” is to determine the briefing schedule for that motion, Unless otherwise notified by the Court, Judge Kiel decides all motions on the papers and no appearances are required on the motion day. 7. RICO Cases. In all matters in which the complaint contains a RICO claim, pursuant to 18 U.S.C. §§ 1961—1968, plaintiff(s) must file a RICO Case Statement within 30 days of filing the complaint, in accordance with Appendix O of the Local Civil Rules & Appendices found at: https://www.njd.uscourts.gov/local-rules-and-appendices. 8. Patent Cases. Judge Kiel does not permit the filing of summary judgment motions in ANDA patent cases. A party may, however, submit a letter to the Court, not to exceed three single-spaced pages, seeking a waiver of this rule if the party believes that a summary judgment motion would assist the Court in expeditiously resolving the case and would resolve more than mere tangential issues. The letter must set forth the basis for the proposed motion for summary judgment, with citations to relevant authority, and the issue(s) expected to be resolved by the motion. Within seven days after receipt of this letter, all adversaries must submit a written response, not to exceed three single-spaced pages. No party may submit a reply unless directed by the Court. 9. Class Action Cases. It is Judge Kiel’s practice to conduct a preliminary settlement approval hearing in advance of the final settlement approval hearing required by Rule 23(e). At the preliminary approval hearing the parties shall be prepared to address, in a reasonably comprehensive manner, all of the factors the Court will consider at the final approval hearing, including but not limited to the factors enumerated in Rule 23(e), Girsh v. Jepson, 521 F.2d 153, 157 (3d Cir. 1975), and In re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions, 148 F.3d 283, 323 (3d Cir. 1998).

=== Order Concerning Citizenship of Unincorporated Business Organization ===

CHAMBERS OF EDWARD S. KIEL UNITED STATES DISTRICT JUDGE MITCHELL H. COHEN BUILDING & U.S. COURTHOUSE 4th & COOPER STREET CAMDEN, NJ 08101 856-757-5021 ORDER CONCERNING THE CITIZENSHIP OF AN UNINCORPORATED BUSINESS ORGANIZATION FOR THE PURPOSES OF DIVERSITY JURISDICTION PURSUANT TO 28 U.S.C. § 1332 Dear Counsel: 1. Limited liability companies, limited partnerships, and general partnerships are unincorporated business organizations. For the purposes of subject-matter jurisdiction pursuant to 28 U.S.C. § 1332 — commonly known as diversity jurisdiction — in a civil action, unincorporated business organizations are deemed to be citizens of all states in which all of their members and/or partners are citizens, and not simply the states in which they were formed or have their principal places of business. Indeed, the states in which such unincorporated business organizations are formed and have their principal places of business are not relevant to the Court’s analysis of diversity jurisdiction.1 2. When diversity jurisdiction is asserted in an action, and when a party is an unincorporated business organization, the Court expects the following for purposes of determining the citizenship of that unincorporated business organization: (a) The name and citizenship of each member (including managing 1 See GBForefront, L.P. v. Forefront Mgmt. Grp., LLC, 888 F.3d 29, 34 (3d Cir. 2018) (holding that “[a] partnership, as an unincorporated business entity, assumes the citizenship of all its partners,” and that “[l]ikewise, a limited liability company is a citizen of all the states of its members”) (citation omitted); see also Americold Realty Tr. v. Conagra Foods, Inc., 136 S. Ct. 1012, 1014–15 (2016) (setting forth the “metaphysical” rule concerning unincorporated entities that “[w]hile humans and corporations can assert their own citizenship, other entities take the citizenship of their members”). 1 members, majority members, and minority members) and/or of each partner (including managing partners, general partners, and limited partners) of that unincorporated business organization must be specifically pleaded; and (b) When a member and/or a partner thereof is itself an unincorporated business organization, the citizenship of that member and/or that partner must be traced and analyzed accordingly.2 3. By way of example, the Court sets forth a hypothetical analysis of a limited liability company that is a party to an action wherein diversity jurisdiction is asserted: (a) Alpha LLC is a limited liability company formed under the laws of Oregon with its principal place of business located at 123 Main Street in Boise, Idaho. All of the members of Alpha LLC must be identified because Alpha LLC is an unincorporated business organization. Its Oregon formation and Idaho location are not relevant for a determination as to whether there is complete diversity of citizenship. (b) Alpha LLC is comprised of two members: (i) Joseph Bloggs, who is domiciled (meaning, his home address is located) in Newark, New Jersey, and (ii) Beta LP, a limited partnership formed under the laws of Alaska with its principal place of business located at 789 Oak Street in Honolulu, Hawaii. Joseph Bloggs is deemed to be a citizen of New Jersey based upon his place of domicile, and thus the analysis is complete as to Joseph Bloggs.3 However, all of the partners of Beta LP must be identified in order to 2 See Zambelli Fireworks Mfg. Co., Inc. v. Wood, 592 F.3d 412, 420 (3d Cir. 2010) (holding that as to the citizenship of partnerships and limited liability companies, “the citizenship of unincorporated associations must be traced through however many layers of partners or members there may be to determine the citizenship”) (internal quotes and citation omitted); see also Caribbean Telecomms. Ltd. v. Guy. Tel. & Tel. Co. Ltd., 594 F. Supp. 2d 522, 530 (D.N.J. 2009) (holding that a party is not permitted to select among the multiple “jurisdictional citizenships” of an entity to preserve or defeat the requirement of complete diversity of citizenship). 3 See 28 U.S.C. § 1332(a); see also GBForefront, L.P., 888 F.3d at 35 (holding that “[a]lleging residency alone is insufficient to plead diversity of citizenship”). 2 completely determine the citizenship of Alpha LLC, as the Alaska formation and Hawaii location of Beta LP are not relevant for a determination as to whether there is complete diversity of citizenship. (c) Beta LP is comprised of two partners: (i) Joe Shlabotnik & Sons, Inc. (hereinafter, “JSSI”), a corporation formed under the laws of Delaware with its principal place of business located at 987 Seaview Avenue in Brooklyn, New York, and (ii) Gamma LLC, a limited liability company formed under the laws of Nevada with its principal place of business located at 246 Maple Street in Topeka, Kansas. JSSI is deemed to be a citizen of both Delaware and New York, and thus the analysis as to JSSI is complete.4 However, all of the members of Gamma LLC must be identified in order to completely determine the citizenship of Alpha LLC, as the Nevada formation and Kansas location of Gamma LLC are not relevant for a determination as to whether there is complete diversity of citizenship. (d) Gamma LLC is comprised of two members: (i) Samuel Clemens, who is domiciled (meaning, his home address is located) in Hannibal, Missouri, and (ii) Stephen Pollock, who is domiciled (meaning, his home address is located) in Portland, Maine. Samuel Clemens is deemed to be a citizen of Missouri based upon his place of domicile, and Stephen Pollock is deemed to be a citizen of Maine based upon his place of domicile, and thus the analysis is complete as to Samuel Clemens and Stephen Pollock, and — at this juncture — as to Alpha LLC. (e) Based upon the foregoing, Alpha LLC is deemed to be a citizen of New Jersey, Delaware, New York, Missouri, and Maine.5 4 See 28 U.S.C. § 1332(c)(1). 5 For the purposes of further clarification as to an individual’s place of domicile, the Court is authorized to direct that an individual’s street address be provided. See Coulter v. Paulisick, No. 19-1300, 2019 WL 2713288, at *3 (3d Cir. June 28, 2019) (admonishing a party for having “failed to even provide an address for her alleged New Jersey domicile” in response to a jurisdictional 3 (f) This is the aforementioned analysis in graphic form: Alpha LLC / \ Bloggs (Newark, NJ) Beta LP \ / \ / JSSI (Delaware corporation with its NY principal place of business) Gamma LLC | | | | | | | | Clemens Pollock (Hannibal, Mo.) (Portland, Me.) 4. When engaging in this citizenship analysis, the parties must refrain from thwarting the Court’s efforts to ascertain whether there is diversity jurisdiction.6 inquiry by the District Court); Coulter v. Tatananni, 737 F. App’x 613, 616 (3d Cir. 2018) (admonishing a party for having “declined to directly respond to the aspect of the Magistrate Judge’s show cause order related to diversity jurisdiction” concerning the address of that party’s alleged place of domicile), cert. denied, 139 S. Ct. 1179 (2019), reh’g denied, 139 S. Ct. 1596 (2019). 6 See Belleville Catering Co. v. Champaign Mkt. Place, L.L.C., 350 F.3d 691, 693 (7th Cir. 2003) (holding that such “details [cannot be] kept confidential from the judiciary”); see also Emerald Inv’rs Tr. v. Gaunt Parsippany Partners, 492 F.3d 192, 207 n.22 (3d Cir. 2007) (holding that a party cannot withhold the details of its citizenship from the judiciary), abrogated on other grounds by GBForefront, L.P., 888 F.3d at 39–40; Wonders Tr. v. Deaton, Inc., 200 F.R.D. 473, 480 (M.D. Fla. 2000) (admonishing a party for its failure to cooperate with the district court’s jurisdictional inquiry, because a party “should not be permitted, through recalcitrance, to prevent this Court from determining its own subject-matter jurisdiction”). 4 5. To the extent that further guidance is required in complying with this Order, the parties are encouraged to contact Chambers directly. /s/ Edward S. Kiel EDWARD S. KIEL United States District Judge 5