Genuine Lifetime et al v. Brewer III et al
| Texas Northern District Court | |
| Judge: | Ed Kinkeade |
| Case #: | 3:25-cv-00692 |
| Nature of Suit | 190 Contract - Other Contract |
| Cause | 28:1330 Breach of Contract |
| Case Filed: | Mar 22, 2025 |
| Last checked: Monday Mar 24, 2025 2:01 AM CDT |
|
Defendant
AFG Companies, Inc
|
|
|
Defendant
AFG Technologies, LLC d/b/a Tronix
|
|
|
Defendant
Automotive Financial Group, Inc.
|
|
|
Defendant
Ralph Wright Brewer III
|
|
|
Defendant
CareGuard Dealer Services, LLC
|
|
|
Defendant
CareGuard Warranty Services, Inc.
|
|
|
Defendant
Daidax, Inc. (f/k/a Pathwai, Inc. and Ben Automotive Inc.)
|
|
|
Defendant
DeLaporte Learning, Inc
|
|
|
Defendant
Prime Reserve Plus, Inc.
|
|
|
Defendant
Southwest Colonial Reinsurance, Ltd.
|
|
|
Plaintiff
Genuine Lifetime
|
Represented By
|
|
Plaintiff
Tyler Luck
|
Represented By
|
|
Plaintiff
October 3rd Holdings LLC
|
Represented By
|
| Docket last updated: 6 hours ago |
| Tuesday, March 25, 2025 | ||
| 7 | 7
service
Summons Issued
Tue 03/25 4:19 PM
Summons Issued as to AFG Companies Inc, AFG Technologies LLC, Automotive Financial Group Inc, Ralph Wright Brewer III, CareGuard Dealer Services LLC, CareGuard Warranty Services Inc, Daidax Inc, DeLaporte Learning Inc, Prime Reserve Plus Inc, Southwest Colonial Reinsurance Ltd. (knb) |
|
| Monday, March 24, 2025 | ||
| 4 | 4
order
Order
Mon 03/24 3:43 PM
AMENDED ELECTRONIC ORDER: Before the Court is the Plaintiffs' Original Complaint (the "Complaint"). Doc. No. 1. I. The Court has "an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party." Arbaugh v. Y&H Corp. , 546 U.S. 500, 514 (2006) (citing Ruhrgas AG v. Marathon Oil Co. , 526 U.S. 574, 583 (1999)). The party seeking diversity jurisdiction must "distinctly and affirmatively" allege all parties' citizenship. Seguin v. Remington Arms Co., L.L.C. , 22 F.4th 492, 495 (5th Cir. 2022) (quoting Getty Oil Corp. v. Insurance Co. of N. Am. , 841 F.2d 1254, 1259 (5th Cir. 1988)). Accordingly, the Court has sua sponte reviewed the Complaint, and finds Plaintiffs have not properly alleged several Defendants' citizenship, as detailed below, and thus Plaintiffs have failed to properly allege the citizenship of all Parties as is necessary to assert complete diversity. A. The Complaint fails to "distinctly and affirmatively" allege Defendant Ralph Wright Brewer IIIs citizenship. Plaintiffs' Original Complaint asserts that "Brewer is an individual residing in Bartonville, Texas." Doc. No. 1 at 2, ¶4. The Fifth Circuit has consistently reaffirmed that "[a]n allegation of residency alone 'does not satisfy the requirement of an allegation of citizenship.'" SXSW, L.L.C. v. Fed. Ins. Co. , 83 F.4th 405, 407 (5th Cir. 2023) (quoting Strain v. Harrelson Rubber Co. , 742 F.2d 888, 889 (5th Cir. 1984)); Neely v. Bankers Tr. Co. of Tex. , 757 F.2d 621, 634 n.18 (5th Cir. 1985); Stine v. Moore , 213 F.2d 446, 448 (5th Cir. 1954). The citizenship of a natural person "is determined by domicile, which requires residency plus an intent to make the place of residency one's permanent home." SXSW, L.L.C. , 83 F.4th at 407 (internal citation omitted). Thus Plaintiffs have not "distinctly and affirmatively" asserted Defendant Brewer's citizenship, and thus have not properly alleged complete diversity. B. The Complaint also fails to "distinctly and affirmatively" allege Defendant AFG Technologies, LLC d/b/a Tronix's and Defendant CareGard Dealer Services, LLC's citizenship. For diversity purposes, the citizenship of a limited liability company ("LLC") is determined by the citizenship of all of its members. >SXSW, L.L.C. , 83 F.4th at 407-408. Further, these allegations must identify each member of the LLC (through every layer, if relevant) and distinctly and affirmatively allege the citizenship of each member. MidCap Media Fin., L.L.C. v. Pathway Data, Inc. , 929 F.3d 310, 314 (5th Cir. 2019). The Plaintiffs fail to identify and allege each of the members of both aforementioned LLCs, through every level if necessary, and fail to allege the citizenship of each member. Doc. No. 1 at 4-5, ¶¶8-9. Thus the Plaintiffs fail to "distinctly and affirmatively" allege the citizenship of each member of these Defendant LLCs. C. The Complaint fails to "distinctly and affirmatively" allege the citizenship of Defendant Southwest Colonial Reinsurance, Ltd. Plaintiffs allege that "Defendant Southwest Colonial Reinsurance, Ltd. is a reinsurance entity affiliated with the AFG entities that resides in Texas." Doc. No. 1 at 4, ¶10. Plaintiffs further allege that "all partners of Defendant Southwest Colonial Reinsurance, Ltd. are individuals domiciled in the state of Texas, corporations incorporated and having their principal place of business in the State of Texas, and unincorporated associations whose members or partners are also domiciliary or citizens of the state of Texas." Id. Although this allegation of "partners" suggests that Defendant Southwest Colonial Reinsurance, Ltd. is an unincorporated association, Plaintiffs fail to distinctly allege what type of entity it is, and if an unincorporated association, fails to allege its members and their citizenship. Id. Accordingly, the Complaint fails to properly allege this Defendant's citizenship, and thus Plaintiffs fail to properly allege complete diversity. The Plaintiffs are reminded that the standard for determining citizenship of an LLC and requirement to allege each member's citizenship (through every level, if necessary) applies equally to partnerships as it does to LLCs. See Corfield v. Dallas Glen Hills LP , 355 F.3d 853, 856-57 (5th Cir. 2003); MidCap Media Fin., L.L.C. , 929 F.3d at 314. For the foregoing reasons, the Plaintiffs' Original Complaint fails to distinctly and affirmatively allege every Parties' citizenship as necessary to establish jurisdiction on the basis of complete diversity. See Getty Oil Corp., 841 F.2d at 1259. Accordingly, the Plaintiffs may amend their Original Complaint to properly allege the Parties' citizenship by April 8, 2025. If Plaintiffs fail to amend, or fail to do so sufficiently to establish jurisdiction, the Court will, without further notice, dismiss the case without prejudice. II. In addition, the Plaintiffs have failed to file with their initial filing with the Court the "Certificate of Interested Persons" required by Local Civil Rule 3.1(c) and the two separate Disclosure Statements required by Fed R. Civ. P. 7.1(a)(1) and (2). The Plaintiffs SHALL file these required disclosures no later than April 8, 2025 . (Ordered by Judge Ed Kinkeade on 3/24/2025) (chmb) |
|
| 3 | 3
order
Order
Mon 03/24 1:28 PM
ELECTRONIC ORDER: Before the Court is the Plaintiffs' Original Complaint (the "Complaint"). Doc. No. 1. I. The Court has "an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party." Arbaugh v. Y&H Corp. , 546 U.S. 500, 514 (2006) (citing Ruhrgas AG v. Marathon Oil Co. , 526 U.S. 574, 583 (1999)). The party seeking diversity jurisdiction must "distinctly and affirmatively" allege all parties' citizenship. Seguin v. Remington Arms Co., L.L.C. , 22 F.4th 492, 495 (5th Cir. 2022) (quoting Getty Oil Corp. v. Insurance Co. of N. Am. , 841 F.2d 1254, 1259 (5th Cir. 1988)). Accordingly, the Court has sua sponte reviewed the Complaint, and finds Plaintiffs has not properly alleged several Defendants' citizenship, as detailed below, and thus Plaintiffs have failed to properly allege the citizenship of all Parties as is necessary to assert complete diversity. A. The Complaint fails to "distinctly and affirmatively" allege Defendant Ralph Wright Brewer III's citizenship. Plaintiffs' Original Complaint asserts that "Brewer is an individual residing in Bartonville, Texas." Doc. No. 1 at 2, ¶4. The Fifth Circuit has consistently reaffirmed that "[a]n allegation of residency alone 'does not satisfy the requirement of an allegation of citizenship.'" SXSW, L.L.C. v. Fed. Ins. Co. , 83 F.4th 405, 407 (5th Cir. 2023) (quoting Strain v. Harrelson Rubber Co. , 742 F.2d 888, 889 (5th Cir. 1984)); Neely v. Bankers Tr. Co. of Tex. , 757 F.2d 621, 634 n.18 (5th Cir. 1985); Stine v. Moore , 213 F.2d 446, 448 (5th Cir. 1954). The citizenship of a natural person "is determined by domicile, which requires residency plus an intent to make the place of residency one's permanent home." SXSW, L.L.C. , 83 F.4th at 407 (internal citation omitted). Thus Plaintiffs have not "distinctly and affirmatively" asserted Defendant Brewer's citizenship, and thus has not properly alleged complete diversity. B. The Complaint also fails to "distinctly and affirmatively" allege Defendant AFG Technologies, LLC d/b/a Tronix's and Defendant CareGard Dealer Services, LLC's citizenship. For diversity purposes, the citizenship of a limited liability company ("LLC") is determined by the citizenship of all of its members. >SXSW, L.L.C. , 83 F.4th at 407-408. Further, these allegations must identify each member of the LLC (through every layer, if relevant) and distinctly and affirmatively allege the citizenship of each member. MidCap Media Fin., L.L.C. v. Pathway Data, Inc. , 929 F.3d 310, 314 (5th Cir. 2019). The Plaintiffs fail to identify and allege each of the members of both aforementioned LLCs, through every level if necessary, and fail to allege the citizenship of each member. Doc. No. 1 at 4-5, ¶¶8-9. Thus the Plaintiffs fail to "distinctly and affirmatively" allege the citizenship of each member of these Defendant LLCs. C. The Complaint fails to "distinctly and affirmatively" allege the citizenship of Defendant Southwest Colonial Reinsurance, Ltd's citizenship. For diversity purposes, a corporation is a citizen "of any State by which it has been incorporated and the State where it has its principal place of business. " 28 U.S.C. § 1332(c) (emphasis added); see J.A. Olson Co. v. City of Winnona , 818 F.2d 401, 404 (5th Cir. 1987); see also Hertz Corp. v. Friend , 559 U.S. 77, 92 (2010) (corporation's principal place of business is its "nerve center," meaning "the place where a corporation's officers direct, control, and coordinate the corporation's activities."). Plaintiff fails to assert the state of Southwest Colonial Reinsurance, Ltd's state of incorporation, and also fails to assert this Defendant's principal place of business. Doc. No. 1 at 5, ¶10. Accordingly, the Complaint fails to properly allege this Defendant's citizenship, and thus the Complaint fails to properly allege complete diversity. For the foregoing reasons, the Plaintiffs' Original Complaint fails to distinctly and affirmatively allege every Parties' citizenship as necessary to establish jurisdiction on the basis of complete diversity. See Getty Oil Corp., 841 F.2d at 1259. Accordingly, the Plaintiffs may amend their Original Complaint to properly allege the Parties' citizenship by April 8, 2025. If Plaintiffs fail to amend, or fail to do so sufficiently to establish jurisdiction, the Court will, without further notice, dismiss the case without prejudice. II. In addition, the Plaintiffs have failed to file with their initial filing with the Court the "Certificate of Interested Persons" required by Local Civil Rule 3.1(c) and the two separate Disclosure Statements required by Fed R. Civ. P. 7.1(a)(1) and (2). The Plaintiffs SHALL file these required disclosures no later than April 8, 2025 . (Ordered by Judge Ed Kinkeade on 3/24/2025) (chmb) |
|
| Saturday, March 22, 2025 | ||
| 6 | 6
qcref
Kinkeade
Tue 03/25 4:17 PM
New Case Notes: A filing fee has been paid. Pursuant to Misc. Order 6, Plaintiff is provided the Notice of Right to Consent to Proceed Before A U.S. Magistrate Judge (Judge Horan). Clerk to provide copy to plaintiff if not received electronically. (knb) |
|
| 2 | 2
6
pgs
order
Order
Sat 03/22 11:16 AM
ORDER: This Order governs requests to file materials in this case under seal. (Ordered by Judge Ed Kinkeade on 3/22/2025) (chmb) |
|
| 1 | 1
40
pgs
cmp
Complaint
Sat 03/22 12:06 AM
COMPLAINT WITH JURY DEMAND against AFG Companies, Inc, AFG Technologies, LLC d/b/a Tronix, Automotive Financial Group, Inc., Ralph Wright Brewer III, CareGuard Dealer Services, LLC, CareGuard Warranty Services, Inc., Daidax, Inc. (f/k/a Pathwai, Inc. and Ben Automotive Inc.), DeLaporte Learning, Inc, Prime Reserve Plus, Inc., Southwest Colonial Reinsurance, Ltd. filed by October 3rd Holdings LLC, Tyler Luck, Genuine Lifetime. (Filer fee note- Filed by the USA) Clerk to issue summons(es). In each Notice of Electronic Filing, the judge assignment is indicated, and a link to the[LINK:Judges Copy Requirements] and[LINK:Judge Specific Requirements] is provided. The court reminds the filer that any required copy of this and future documents must be delivered to the judge, in the manner prescribed, within three business days of filing. Unless exempted, attorneys who are not admitted to practice in the Northern District of Texas must seek admission promptly. Forms, instructions, and exemption information may be found at www.txnd.uscourts.gov, or by clicking here:[LINK:Attorney Information - Bar Membership] . If admission requirements are not satisfied within 21 days, the clerk will notify the presiding judge. (McCathern, Levi) |
|