GBFOREFRONT, L.P. v. FOREFRONT MANAGEMENT GROUP, LLC; FOREFRONT CAPITAL MANAGEMENT, LLC; FOREFRONT CAPITAL MARKETS, LLC; FOREFRONT ADVISORY, LLC; PENNY
No. 16-3905
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
Filed April 19, 2018
PRECEDENTIAL
Argued January 11, 2018
Kenneth B. Danielsen, Esq.
Christopher Nucifora, Esq. [ARGUED]
Kaufman Dolowich & Voluck
21 Main Street, Suite 251
Hackensack, NJ 07601
Eileen M. Ficaro, Esq.
Kaufman Dolowich & Voluck
1777 Sentry Park West
Dublin Hall, Suite 100
Blue Bell, PA 19422
Gary P. Lightman, Esq.
Glenn A. Manochi, Esq.
Lightman & Manochi
1520 Locust Street, 12th Floor
Philadelphia, PA 19102
Counsel for Appellant
Sean L. Corgan, Esq.
Francis J. Grey, Jr., Esq.
Ricci Tyrrell Johnson & Grey
1515 Market Street, Suite 700
Philadelphia, PA 19102
Gary M. Fellner, Esq. [ARGUED]
Porzio Bromberg & Newman
156 West 56th Street, Suite 803
New York, NY 10019
Counsel for Appellees
OPINION OF THE COURT
JORDAN, Circuit Judge.
This case requires us to consider whether, in assessing diversity-of-citizenship jurisdiction under
Based on the distinction we recognize today between traditional trusts and business trusts, we will vacate the District Court order dismissing this case for lack of jurisdiction. Because the record on appeal is insufficient for us to proceed further, we will remand the case with instructions to determine whether the trusts at issue are of the traditional or business variety and whether there is diversity jurisdiction. We also instruct the District Court to give leave to further amend the complaint within a reasonable time to cure defective jurisdictional allegations.
I. BACKGROUND
Following an investment opportunity gone awry, the details of which are immaterial at this point, GBForefront, L.P., filed suit in the District Court against Forefront Management Group, LLC (“FMG“); Forefront Capitаl Management, LLC; Forefront Capital Markets, LLC; and Forefront Advisory, LLC, (collectively, the “Defendants“) for breach of contract and unjust enrichment. Initially, GBForefront, which is a limited partnership, had sued only FMG, a limited liability company (or “LLC“), and alleged that the Court had diversity jurisdiction under
The operative pleading is the first
At the time the complaint was filed, GBForefront, L.P., was a limited partnership composed of a general partner, GBForefront General, LLC, and a limited partner, WPF2, LP. The sole member of GBForefront General was Warren Weiner, alleged to be a resident of Pennsylvаnia. Limited partner WPF2 itself was a limited partnership composed of a general partner, Weiner 2 General LLC, and a series of five trusts as limited partners. The sole member of Weiner 2 General LLC was Warren Weiner. Those trusts were established for each of Warren Weiner‘s five grandchildren with Warren Weiner designated as the trustee of each trust. At least three of those grandchildren lived in New Jersey at the time the complaint was filed.
After years of litigation, GBForefront accepted an offer of judgment made by the Defendants pursuant to
It was not. GBForefront soon alleged that “[c]ertain Forefront entities”2 had defaulted on the terms of the settlement agreement, and it thus moved for entry of the consent judgment. (J.A. at 923). With the assistance of new counsel, the Defendants cross-moved to dismiss the case for lack of subject matter jurisdiction, claiming that GBForefront had not adequately pled the citizenship of FMG and that complete diversity was lacking when the lawsuit was initially filed. The parties briefed the issue of diversity jurisdiction, but then came a twist. The Supreme Court issued its opinion in Americold Realty, specifically dealing with the citizenship of trusts.
After holding a hearing and considering the parties’ supplemental briefing on the new precedent, the District Court granted the Defendants’ motion to dismiss because the Court determined the membership of GBForefront included at least three trusts whose beneficiaries were citizens of New Jersey3 and FMG also had a member who was a citizen of New Jersey.4
The Court reasoned that Emerald Investors instructed it not to distinguish between traditional trusts and business trusts for jurisdictional purposes, and that Americold Realty required the citizenship of a business trust to include all its members, including its beneficiaries.
GBForefront timely appealed the dismissal.
On appeal, GBForefront argues that the Americold Realty holding described by the District Court applies only to business trusts, while the trusts composing GBForefront are traditional trusts whose citizenship is based only оn the citizenship of their trustees. The Defendants of course disagree, asserting that Americold Realty requires that the citizenship of trust beneficiaries always be accounted for when determining diversity jurisdiction. The Defendants further assert that GBForefront comprises a series of trusts whose beneficiaries’ citizenship prevents subject matter jurisdiction based on diversity. The resolution of this jurisdictional dispute accordingly turns on the Supreme Court‘s Americold Realty opinion. In our view, that case instructs that, for purposes of diversity jurisdiction, the citizenship of a traditional trust must be determined by the citizenship of its trustee alone.6
A. General Principles of Diversity Jurisdiction
It is fundamental that federal courts must have subject matter jurisdiction before reaching the merits of a case, and, as its name indicates, jurisdiction based on diversity of citizenship requires that opposing parties be citizens of diverse states. Zambelli Fireworks Mfg. Co. v. Wood, 592 F.3d 412, 418 (3d Cir. 2010). Under the dictates of
subject matter jurisdiction may be raised at any point in the litigation, and, when the jurisdictional basis is diversity of citizenship, diversity is assessed as of the time the complaint was filed. Grupo Dataflux v. Atlas Glob. Grp., L.P., 541 U.S. 567, 570-71 (2004).
Most rules for determining the citizenship of natural persons and business entities are well-established. Zambelli Fireworks, 592 F.3d at 419. The citizenship of a natural person is the state where that person is domiciled. Id. The citizenship of a corporation is both its state of incorporation and the state of its principal place of business. Id. A partnership, as an unincorporated business entity, assumes the citizenship of all its partners. Id. Likewise, a limited liability company is a citizen of all the states of its members. Id. at 420. But, as this case demonstrates, there are still some rules in flux. Hence the challenge to jurisdiction we аddress here.
“A factual attack, on the other hand, is an argument that there is no subject matter jurisdiction because the facts of the case ... do not support the asserted jurisdiction.” Id. To resolve a factual challenge, the “[c]ourt may look beyond the pleadings to ascertain the facts[.]” Id. Again, “for example, while diversity of citizenship might have been adequately pleaded by the plaintiff, the defendant can submit proof that, in fact, diversity is lacking.” Id. The defendant has the initial burden of production to raise a factual challenge. See Washington v. Hovensa LLC, 652 F.3d 340, 345 & n.2 (3d Cir. 2011) (distinguishing between burden of proof and burden of production, in that the latter “determines which party must first present evidence sufficient to raise a given issue as pertinent“). Once a factual challenge has been raised, the plaintiff then has the burden of proof to establish diversity jurisdiction by a preponderance of the evidence. McCann v. Newman Irrevocable Tr., 458 F.3d 281, 288-89 (3d Cir. 2006).
The Defendants here mounted both a facial challenge and a factual challenge to GBForefront‘s assertion of diversity jurisdiction.
B. Facial Challenge To Diversity Jurisdiction
In the District Court, the Defendants’ facial challenge was “that GBForefront never alleged the citizenship of the members of the LLC defendant entities” in its complaint. (J.A. at 6.) The Court recognized that issue but did not resolve it because the Court concluded that diversity jurisdictiоn was lacking based on the Defendants’ factual challenge.8 On
appeal, the parties have not addressed the facial challenge at all. We nevertheless have an independent obligation to address it.
The Defendants are indeed correct that GBForefront failed to plead the citizenship of FMG‘s members. It failed even to plead its own citizenship. Instead, GBForefront, a limited partnership, alleged that Warren Weiner, who was the sole member of the general partner of GBForefront and also the sole member of the general partner of the limited partner of GBForefront, was a “resident” of Pennsylvania and that “none of [FMG‘s] members are residents of Pennsylvania“; nothing is mentioned about citizenship.9 (J.A. at 719-20); see supra note 1. Alleging residency alone is insufficient to plead diversity of citizenship, McNair v. Synapse Grp. Inc., 672 F.3d 213, 219 n.4 (3d Cir. 2012), while changing allegations of residency to
The clear pleading problem here may be amenable to easy solution. “Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts.”
GBForefront‘s diversity allegations appear to be nothing more than inartful drafting on a technical point, albeit a serious one. Accordingly, because the factual record on appeal is insufficient for us to determine whether complete diversity existed when the complaint was filed, see infra Section II.C, we instruct the District Court to give GBForefront the opportunity pursuant to
C. Factual Challenge To Diversity Jurisdiction
We turn next to the Defendants’ factual challenge to diversity jurisdiction, which is simрly that complete diversity was lacking when the lawsuit was filed.
When a business entity consists of constituent parts that are also business forms, the inquiry into jurisdictional citizenship “can become quite complicated. ... [T]he citizenship of unincorporated associations must be traced through however many layers of partners or members there may be.” Lincoln Benefit Life Co., 800 F.3d at 105 n.16 (internal quotation marks and citation omitted). This is such a case, with trusts serving as limited partners of a limited partnership that is in turn a limited partner of GBForefront. See supra note 1 (describing GBForefront‘s ownership structure). And that is on just one side of
1. Jurisdictional Citizenship When A Trust Is Involved In A Lawsuit
Through a progression of cases, the Supreme Court has established three rules for determining jurisdictional citizenship when a trust is involved in a lawsuit.
First, in Navarro Savings Association v. Lee, 446 U.S. 458 (1980), the Court said that, when a trustee sues or is sued on behalf of a trust, the citizenship of the trust is based on that of the trustee alone. Id. at 465-66; see also Americold Realty, 136 S. Ct. at 1016. In such cases, trustees may invoke diversity jurisdiction based on their own citizenship, without accounting for the citizenship of the trust‘s beneficiaries. Navarro, 446 U.S. at 465-66. In Navarro, eight individual trustees of a trust organized under Massachusetts law sued a savings association in federal court on a breach of contract claim. Id. at 459. The citizenship of the trustees differed from that of the savings association, but some of the trust‘s beneficiaries were citizens of the same state as the savings association. Id. at 460. Because the trustees who initiated the lawsuit “possesse[d] certain customary powers to hold, manage, and dispose of” trust properties, the trustees were permitted “to sue in their own right, without regard to the citizenship of the trust beneficiaries.” Id. at 464-66. Although the trust in some respects more closely resembled a business association than a traditional trust, the Supreme Court said that when trustees initiate a lawsuit in their own name or are the target of a suit, courts consider only the citizenship of the trustees for purposes of determining diversity jurisdiction. Id. at 465-66; see also Americold Realty, 136 S. Ct. at 1016.
Second, in Carden v. Arkoma Associates, 494 U.S. 185 (1990), the Court held that, when an artificial legal entity besides a corporation sues or is sued, diversity is determined by looking to the citizenship of the entity‘s members. Id. at 195; see also Americold Realty, 136 S. Ct. at 1016. In that particular case, a limited partnership brought a contract dispute tо federal court, based on diversity jurisdiction. Carden, 494 U.S. at 186. One limited partner of the partnership was a citizen of the same state as that of a defendant. Id. The limited partnership argued that jurisdiction should be determined solely on the basis of the citizenship of its general partners, who “have exclusive and complete management and control of the operations of the partnership[,]” akin to the approach taken with the trust at issue in Navarro. Id. at 192 (citation omitted). The Supreme Court declined to extend its reasoning from Navarro, though, saying that ”Navarro had nothing to do with the citizenship of the ‘trust,’ since it was а suit by the trustees in their own names.” Id. at 192-93. Carden, in contrast, concerned determining the citizenship of “an artificial entity, [i.e., a limited partnership,] suing or being sued[.]” Id. at 192. Ultimately, the Court held that the citizenship of a limited partnership is based on the citizenship of all its partners; that is, the citizenship of each general and limited partner. Id. at 195-96.
Finally, in Americold Realty, the Supreme Court decided that the citizenship of a business trust includes the citizenship of all its members. 136 S. Ct. at 1016. The
Citing our decision in Emerald Investors Trust v. Gaunt Parsippany Partners, 492 F.3d 192 (3d Cir. 2007), the Supreme Court noted the challenge courts have had in deciding how to assign citizenship for jurisdictional purposes when a trust is a party to a suit. Id. The Court said:
confusion regarding the citizenship of a trust is understandable and widely shared. See Emerald Investors (discussing vаrious approaches among the Circuits). The confusion can be explained, perhaps, by tradition. Traditionally, a trust was not considered a distinct legal entity, but a “fiduciary relationship” between multiple people. Such a relationship was not a thing that could be haled into court; legal proceedings involving a trust were brought by or against the trustees in their own name. And when a trustee files a lawsuit or is sued in her own name, her citizenship is all that matters for diversity purposes. Navarro, 446 U.S., at 462–466 ... . For a traditional trust, therefore, there is no need to determine its membership, as would be true if the trust, as an entity, were sued.
Id. (some citations omitted). The Court then went on to distinguish business trusts from traditional trusts, as follows:
Many States, however, have applied the “trust” label to a variety of unincorporated entities that have little in common with this traditional template. Maryland, for example, treats a real estate investment trust as a “separate legal entity” that itself can sue or be sued. So long as such an entity is unincorporated, we apply our “oft-repeated rule” that it possesses the citizenship of all its members. Carden, 494 U.S., at 195, ... . But neither this rule nor Navarro limits an entity‘s membership to its trustees just because the entity happens to call itself a trust.
Id. (citation omitted).
While there has been some question about what the Court meant when it said, “[f]or a traditional trust, therefore, there is no need to determine its membership, as would be true if the trust, as an entity, were sued,”11 one thing seems clear: the
Circuit and the D.C. Circuit have concluded the same. See Raymond Loubier Irrevocable Tr. v. Loubier, 858 F.3d 719, 722 (2d Cir. 2017) (“We сonclude that legal proceedings involving such traditional trusts are effectively brought by or against their trustees and, thus, it is the trustees’ citizenship, not that of beneficiaries, that matters for purposes of diversity.“); Wang ex rel. Wong v. New Mighty U.S. Tr., 843 F.3d 487, 494 (D.C. Cir. 2016) (“[T]he citizenship of a traditional trust depends only on the trustees’ citizenship[.]“), cert. denied, ___ U.S. ___, 137 S. Ct. 2266, 198 L.Ed.2d 699 (2017); see also Momenian v. Davidson, 878 F.3d 381, 389 (D.C. Cir. 2017) (quoting same language from Wang ex rel. Wong v. New Mighty U.S. Trust).
That interpretation of Americold Realty is consistent with the larger context of the Court‘s opinion, which focuses on the distinction between traditional trusts and business trusts, while a contrary reading is not. It would be inconsistent with Americold Realty to say, as the Defendants urge here, that a traditional trust cannot be brought into court but nevertheless can sue оr be sued as an entity. Wang, 843 F.3d at 494.
In sum, following the clarification in Americold Realty, the citizenship of a traditional trust is only that of its trustee, while that of a business entity called a trust is that of its constituent owners. Americold Realty thus effectively abrogates our conclusion in Emerald Investors that traditional and business trusts need not be treated differently when determining citizenship for diversity jurisdiction. Emerald Investors, 492 F.3d at 198 n.10. Emerald Investors involved a trust suing partnerships to “recover[] on two unpaid promissory notes and foreclosure of ... mortgages securing the notes.” Id. at 193. To determine diversity jurisdiction, the district court considered the citizenship of the trust‘s beneficiary, but not that of its trustee. Id. at 198. We remanded to the district court with instructions to determine diversity jurisdiction based on the citizenship оf both the trustee and beneficiary. Id. at 205. In arriving at that conclusion, in light of Carden and Navarro, we assessed four alternatives for determining the citizenship of a trust – “(a) look to the citizenship of the trustee only; (b) look to the citizenship of the beneficiary
Americold Realty, necessarily changes that conclusion. As already explained, it instructs that there is a difference of jurisdictional significance between traditional trusts – which embody a fiduciary relationship – and business trusts – which, though they bear the “trust” name, are unincorporated business entities. Given the Supreme Court‘s analysis, we now recognize the abrogation of that part of our holding in Emerald Investors that treated the аnalysis of the jurisdictional citizenship of business trusts the same as that of traditional trusts.
2. Distinguishing Between Traditional And Business Trusts In This Case
The remaining question is how to distinguish between traditional and business trusts. The primary point of distinction is, again, in light of Americold Realty, that a traditional trust exists as a fiduciary relationship and not as a distinct legal entity. 136 S. Ct. at 1016 (citing Restatement (Second) of Trusts § 2). Another general distinction between traditional and business trusts is that a traditional trust facilitates a donative transfer, whereas a business trust implements a bargained-for exchange. See S.I. Strong, Congress and Commercial Trusts: Dealing with Diversity Jurisdiction Post-Americold, 69 Fla. L. Rev. (forthcoming) (manuscript at 14-15), http://ssrn.com/abstract=2834023 (citing law review articles for that proposition); see also Wang, 843 F.3d at 494-95 (concluding trust at issue was a traditional trust because, among other reasons, it was donative trust under D.C. law).
There are thus at least two inquiries a court should undertake when deciding whether, for diversity purposes, a trust is of the “traditional” or “business” variety. First, the court ought to look to the law of the state where the trust was formed to determine whether the trust has the status of a juridical person. Raymond Loubier, 858 F.3d at 730-31 (looking to Florida state law); Wang, 843 F.3d at 494-95 (looking to D.C. law). Comparing the state law on business trusts and more traditional trust rеlationships may facilitate a determination of which type is better suited to describe the trust at issue. Wang, 843 F.3d at 494-95. At the same time, however, the particular labels affixed by state law are not of themselves determinative. See Americold Realty, 136 S. Ct. at 1016 (noting that a trust entity‘s membership is not limited to only its trustees “just because the entity happens to call itself a trust“); Navarro, 446 U.S. at 472 & n.5 (Blackmun, J., dissenting) (arguing that state law is “relevant” but not “dispositive” to threshold questions of federal jurisdiction). Ultimately, our jurisdiction is based on constitutional and federal statutory authority, not state law. Penn Gen. Cas. Co. v. Pennsylvania ex rel. Schnader, 294 U.S. 189, 197 (1935).
The second, and closely related, inquiry the court should mаke focuses on the purpose of the trust – a traditional trust facilitates a donative transfer, Wang, 843 F.3d at 495, while a business trust implements a bargained-for exchange,
Here, the Defendants argue that, even if the trusts at issue were traditional trusts, we should still look to their beneficiaries to determine diversity because of the trusts’ positioning within the layers of GBForefront‘s оwnership structure. The Defendants point out that the trusts did not initiate the lawsuit, and rather are relevant only for
jurisdictional purposes because they are limited partners of a limited partnership that in turn is a limited partner of the partnership that actually initiated the lawsuit. See supra note 1 (describing GBForefront‘s ownership structure). According to the Defendants, Americold Realty, Carden, and Navarro can be distinguished as applying only when the trust or trustee was the party that sued or was sued. Thus, they argue, the trust entities are involved in the lawsuit through the layers of GBForefront‘s ownership structure, so their beneficiaries are necessarily involved too. We disagree.
The rules for determining citizenship do not change depending on whether a trust is embedded within another business entity. See Lincoln Benefit Life Co., 800 F.3d at 105 n.16 (stating rule to trace citizenship through “however many layers of partners or members there may be” (citation omitted)); cf. Johnson v. SmithKline Beecham Corp., 724 F.3d 337, 348-49 (3d Cir. 2013) (determining citizenship of plaintiff LLC, whose sole member was a corporation, as the states of incorporation and principal place of business of the corporation). Given the Supreme Court‘s decision in Americold Realty, the jurisdictional citizenship of a traditional trust is only that of its trustee. That rule is definitive.
Unfortunately, the record on appeal is insufficient for us to apply that rule to resolve the Defendants’ factual challenge to diversity jurisdiction in this case. In particular, the record is insufficient because GBForefront comprised five trusts but the record only contains the trust instrument for one of them. We must, therefore, remand to the District Court with instructions for it to determine, based on the foregoing guidance, whether the trusts at issue are traditional or business trusts and thus whether there is diversity jurisdiction.14
III. CONCLUSION
Accordingly, we will vacate the District Court order dismissing the case for lаck of diversity jurisdiction and remand for further proceedings consistent with this opinion.