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Mark Gamboa v. Beechtree Partners

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION


February 24, 2011

MARK GAMBOA, PLAINTIFF,
v.
BEECHTREE PARTNERS, LLC, ) ET AL., DEFENDANTS.

The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge

MEMORANDUM

Mark Gamboa ("Gamboa") has just sued BeachTree Partners, LLC ("BeechTree") and Brad Newpoff ("Newpoff"), seeking to invoke federal subject matter jurisdiction on diversity of citizenship grounds. Although a literal reading of Gamboa's Complaint would pose questions in that respect, this sua sponte memorandum explains why it may be appropriate to go forward here.

Despite the "LLC" designation for BeachTree, Complaint ¶3 describes it as "an Illinois Limited Partnership." If that were indeed the case, Gamboa's failure to have identified the citizenship of each partner would be fatal in jurisdictional terms (see, e.g., Smart v. Local 702 Int'l Bhd. of Elec. Workers, 562 F.3d 798, 803 (7th Cir. 2009), citing Carden v. Arkoma Assocs., 494 U.S. 185 (1990)).

But it seems possible that Complaint ¶3's use of "limited partnership" rather than "limited liability company" is just a hiccup, so that the Complaint ¶4 reference to Newpoff as BeachTree's "sole owner" was intended to convey the information that Newpoff is the only member of that LLC. True enough, that possibility would appear to be at odds with the plural word "Partners" in BeechTree's name, so that more explanation by Gamboa's counsel is needed.

What appears to be the most prudent course under the circumstances is to issue this Court's customary initial scheduling order, rather than dismissing the action for lack of subject matter jurisdiction at this time. Before the initial status date specified in that order, Gamboa's counsel will be expected to file an amended pleading to clear up the mystery identified here.

20110224

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