Certain Underwriters at Lloyd's Subscribing to Cover Note B0507CG1800155 v. New Prime, Inc.

CERTAIN UNDERWRITERS AT LLOYD'S SUBSCRIBING TO COVER NOTE B0507CG1800155, Plaintiff, v. NEW PRIME, INC., d/b/a PRIME INC. and COVENANT TRANSPORT, INC., Defendants.

Case No. CIV-20-810-F

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

August 18, 2020

ORDER

The court has an independent duty to inquire into its own subject-matter jurisdiction. Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006).

The complaint alleges that the court has subject-matter jurisdiction over this action based upon 28 U.S.C. § 1332 (diversity jurisdiction). Doc. no. 1, ¶ 1. Section 1332 provides that the court shall have original jurisdiction where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between "citizens of different States" or "citizens of a State and citizens or subjects of a foreign state." 28 U.S.C. §§ 1332(a)(1) and (a)(2). Upon review of the jurisdictional allegations, the court concludes they are insufficient to support the exercise of diversity jurisdiction.

The complaint alleges that "Plaintiff Underwriters were and are a group of insurers organized under the laws of and with their principal place of business in the United Kingdom and who insured Bloom Energy Corporation." Doc. no. 1, ¶ 2. The majority of courts addressing the issue have decided that when a complaint has been brought on behalf of or against certain underwriters at Lloyd's of London, the citizenship of all the underwriters constituting the syndicate is determinative for purposes of diversity jurisdiction. See, CNX Gas Co., L.L.C. v. Lloyd's of London, 410 F.Supp.3d 746, 754-755 (W.D. Penn. 2019); Certain Underwriters at Lloyd's, London, Subscribing to Policy No. AMT008174 v. VMA Construction, LLC, Civil Action No. 17-5626 (ES) (SCM), 2018 WL 314815, * 2-3 (D.N.J. Jan. 5, 2018). While the complaint identifies the underwriters, doc. no. 1, ¶ 2, it fails to identify the form of business entity for each of these underwriters. If an underwriter is a corporation, then the averments called for by § 1332(c)(1) are sufficient. See, Danjaq. S.A. v. Pathe Commc'ns Corp. 979 F.2d 772, 774 (9^th Cir. 1992); see also, JPMorgan Chase Bank v. Traffic Stream (BVI) Infrastrure Ltd., 536 U.S. 88, 98 n. 3 (2002) (acknowledging without deciding that "those Circuits that have reached the issue are in agreement that § 1332(c) extends to alien corporations"). However, if an underwriter is another form of business entity, then the averments appropriate for that form of business entity must be provided. See, 15 James WM Moore, Moore's Federal Practice, §§ 102.50-102.57 (3d ed. 2020).¹

Accordingly, the court DIRECTS plaintiff, Certain Underwriters at Lloyd's Subscribing to Cover Note B0507CG1800155, the party invoking diversity jurisdiction, to file an amended complaint which provides the identification of the form of business entity for each of the underwriters and the jurisdictionalinformation required for that business entity.^{2 3} Said amended complaint shall be filed no later than 21 days from the date of this order. Failure to comply may result in the dismissal of this action without prejudice.

IT IS SO ORDERED this 18^th day of August, 2020.

/s/_________

STEPHEN P. FRIOT

UNITED STATES DISTRICT JUDGE

20-0810p001.docx

1. After the filing of the complaint, plaintiff filed a Corporate...