Page 1 PageID
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
TRUMP MEDIA & TECHNOLOGY GROUP CORP.,
Plaintiff,
vs.
WP COMPANY LLC d/b/a The Washington Post,
Case No: 8:23-cv01535-TPB-AAS
Defendant.
____________________________________/
DEFENDANT WP COMPANY LLC’S OPPOSITION
TO PLAINTIFF’S MOTION TO REMAND
The sole basis for remand in Plaintiff Trump Media & Technology Group
Corp.’s (“TMTG”) Motion is an alleged lack of diversity of citizenship between the
plaintiff and defendant. (Doc. No. 7 “Pl.’s Remand Mot.” ¶¶ 2, 5). But TMTG is
wrong: The parties here are citizens of different states as required by 28 U.S.C.
§ 1332(a), and therefore this Court has subject matter jurisdiction over this case by
virtue of complete diversity of citizenship. Specifically, while TMTG is a citizen of
Florida and Delaware, Compl. ¶ 3, WP Company LLC d/b/a The Washington Post
(the “Post”), a limited liability company, is a citizen of only the state of its ultimate
member: the State of Washington, (Doc. No. 13 “Corrected Removal Notice” ¶¶ 12–
13).1 “An LLC’s membership, not its registration, determines its citizenship for
These dispositive jurisdictional facts were fully set forth in the Post’s original July 10, Notice of Removal. (Doc. No. 1 ¶¶ 12–13). The Post’s Corrected Removal Notice deleted an
erroneous reference to Delaware as an additional state of citizenship for the Post. See Corrected
Removal Notice ¶ 13, at 1. Page 2 PageID
diversity purposes.” Ennis v. Flowers Baking Co. of Bradenton, LLC, 2007 WL
1068139, at *1 (M.D. Fla. Apr. 6, 2007) (collecting cases). The Post “is in fact not
a citizen of Delaware for the purposes of diversity jurisdiction, because it does not
have a member that is a citizen of Delaware.” Medlink Legal Sys., LLC v. QIMA
Ltd., 2021 WL 9940297, at *2 (S.D. Fla. Aug. 19, 2021).
TMTG’s Motion to Remand should be denied.
BACKGROUND
A.
TMTG
TMTG is a media and technology company that operates a “flagship social
media platform called ‘Truth Social.’” Compl. ¶ 1. TMTG is a Delaware corporation
with its headquarters in Sarasota, Florida. Id. ¶ 3.
B.
The Post
As explained in detail in both the original and corrected notices, the Post is
a limited liability company organized under the laws of Delaware. (Doc. No. “Original Removal Notice” ¶ 12); Corrected Removal Notice ¶ 12. Its sole member
is Nash Holdings LLC, a limited liability company also organized under Delaware
law. Id. Nash Holdings LLC has two members: Nash Parallel Investment LLC,
organized under Delaware law, and Explore Holdings LLC, organized under the
laws of the State of Washington. Id. The sole member of Nash Parallel Investment
LLC is Explore Holdings LLC, itself. Id. And, finally, Explore Holdings LLC’s sole
member is Jeff Bezos, who is a citizen of the State of Washington. Id. Page 3 PageID
The Complaint recognizes that the Post is a Delaware limited liability
company whose sole member is Nash Holdings LLC. Compl. ¶ 4. However, the
Complaint fails to trace Nash Holdings LLC’s citizenship through its various
members as is necessary to establish the Post’s citizenship for diversity purposes.
See id. Because Plaintiff has not—and indeed, cannot—offer any factual basis for
its legal conclusion that members of Nash Holdings LLC are Delaware citizens, id.,
the Court should disregard the allegation.
PROCEDURAL HISTORY
On May 13, 2023, the Post published an article titled “Trust Linked to
Porn-Friendly Bank Could Gain a Stake in Trump’s Truth Social” on its website.
Compl. ¶ 11. One week later, on May 20, TMTG filed this lawsuit in the Circuit
Court of the Twelfth Judicial Circuit in and for Sarasota County, Florida, asserting
claims of defamation and civil conspiracy. See Trump Media & Tech. Grp. Corp.
v. WP Co., Case No. 2023-CA-004552 (filed May 20, 2023). TMTG served a copy
of the Complaint on the Post on June 9. See Corrected Removal Notice ¶ 1.
On July 10, the Post timely removed the action to this Court pursuant to U.S.C. § 1332(a). See Original Removal Notice. On July 12, TMTG moved to
remand the case to Florida state court. Pl.’s Remand Mot. Three days later, on
July 15, Plaintiff filed a Motion to Shorten Deadlines and Expedite, “request[ing]
the Court . . . shorten the deadline for briefing and expedite any hearing on
Plaintiff’s motion [to] remand this action.” (Doc. No. 11 “Motion to Expedite”).
On July 18, the Post filed a Corrected Notice of Removal, correcting the inadvertent Page 4 PageID
inclusion of Delaware as one of the Post’s states of citizenship in its July 10 Notice
of Removal and clarifying that the State of Washington is the sole state of which
the Post is a citizen. Corrected Removal Notice at 1.
ARGUMENT
TMTG’s Motion to Remand should be denied on two independently
sufficient grounds. First, there is complete diversity of citizenship between the
parties as a matter of law. Second, TMTG failed to comply with the Local Rules of
this Court in filing its Motion to Remand without first conferring with the Post.
I.
THE COURT HAS ORIGINAL JURISDICTION OVER THIS
MATTER PURSUANT TO 28 U.S.C. § 1332(a).
A defendant may remove to federal court a state court civil action “of which
the district courts of the United States have original jurisdiction.” 28 U.S.C.
§ 1441(a). Federal district courts have “original jurisdiction” over civil actions
between “citizens of different States” where the amount in controversy “exceeds
the sum or value of $75,000.” 28 U.S.C. § 1332(a)(1). “The removing defendant
bears the burden of establishing federal jurisdiction.” Samples v. Geico Indem.
Co., 2019 WL 5863902, at *1 (M.D. Fla. Nov. 8, 2019) (citing Adventure Outdoors,
Inc. v. Bloomberg, 552 F.3d 1290, 1294 (11th Cir. 2008)).
Here, TMTG challenges only one of the requirements for jurisdiction under
§ 1332(a)—that the civil action be between citizens of different states. See Pl.’s
Remand Mot. It is clear from the face of the Complaint that the amount in
controversy here exceeds $75,000. See Corrected Removal Notice ¶ 14; Original
Removal Notice ¶ 14; Compl. at 1, 18–19 (seeking $3.78 billion in damages). Page 5 PageID
A.
The Parties Are Completely Diverse.
“[C]omplete diversity” of citizenship is required under § 1332(a), such that
“the citizenship of every plaintiff must be diverse from the citizenship of every
defendant.” Legg v. Wyeth, 428 F.3d 1317, 1321 n.2 (11th Cir. 2005) (citation
omitted). TMTG contends that it and the Post are both citizens of Delaware so “the
requirement of complete diversity is not met in this case.” Pl.’s Remand Mot. ¶¶ 2–
5. Plaintiffs are wrong because, for diversity jurisdiction purposes, the Post is a
citizen of only the State of Washington, not Delaware.1.
TMTG Is a Citizen of Delaware and Florida.
TMTG is a citizen of Delaware and Florida. See Compl. ¶ 3; Corrected
Removal Notice ¶ 11; Original Removal Notice ¶ 11. A corporation is a citizen of
the state(s) in which it (1) is incorporated and (2) has its principal place of business.
See 28 U.S.C. § 1332(c)(1); cf. Hertz Corp. v. Friend, 559 U.S. 77, 81 (2010) (noting
a company’s principal place of business “will typically be found at a corporation’s
headquarters”). Plaintiff acknowledges that TMTG is incorporated in Delaware
and has its principal place of business in Sarasota, Florida. See Pl.’s Remand Mot.
¶ 1; Compl. ¶¶ 1, 3 (describing TMTG as a “Sarasota-based media and technology
company”).
TMTG’s remand motion does not challenge the jurisdictional facts alleged in the Original
Removal Notice, see Pl.’s Remand Mot., which in any event are matters of public record. Rather,
TMTG’s sole basis for remand is the (now corrected) assertion on the face of the Original Removal
Notice that the Post is a citizen of Delaware. Page 6 PageID
2.
The Post Is a Citizen of Washington.
The Post, a limited liability company, is a citizen of the State of Washington
only, not Delaware.
That the Post is a Delaware LLC—that is, a limited liability company
organized in Delaware—is disregarded for diversity purposes because an LLC “is
not a ‘citizen’ under 28 U.S.C. § 1332(a) in its own right.” Cableview Commc’ns of
Jacksonville, Inc. v. Time Warner Cable Se. LLC, 2013 WL 12441093, at *2 (M.D.
Fla. May 6, 2013) (citing Xaros v. U.S. Fidelity & Guaranty Co., 820 F.2d 1176,
1181 (11th Cir. 1987)). “Citizenship of a limited liability company is determined by
the citizenship of each member, as opposed to the state of formation or its principal
place of business.” Worldquest Resort Condo. Owners Ass’n, Inc. v. Hotwire
Commc’ns, Ltd, 2021 WL 8363023, at *1 (M.D. Fla. Dec. 28, 2021) (citing Rolling
Greens MHP, L.P. v. Comcast SCH Holdings L.L.C., 374 F.3d 1020, 1022 (11th Cir.
2004) (per curiam)).3 Thus, “a limited liability company is not, without more, a
citizen of the state that created the entity or the state where it has its principal place
of business[.]” OLGA Baker #2, LLC v. ACE Ins. Co. of the Midwest, 2020 WL
7684942, at *1 (M.D. Fla. Oct. 14, 2020).
See also, e.g. CareerStaff Unlimited, LLC v. Port Charlotte OPCO, LLC, 2023 WL 2456493, at
*1 (M.D. Fla. Mar. 10, 2023) (“[T]he domicile of an LLC is not determined by its state of
organization, but by the domicile of its individual members.”); Underwriters at Lloyd's, London
v. Osting-Schwinn, 613 F.3d 1079, 1086 (11th Cir. 2010) (“For well over a century, federal law has
drawn a sharp distinction between corporations and virtually every other form of association for
purposes of determining diversity of citizenship. On the one hand, corporations are considered
legal persons whose citizenship does not depend on that of their shareholders . . . . unincorporated
associations do not themselves have any citizenship, but instead must prove the citizenship of
each of their members to meet the jurisdictional requirements of 28 U.S.C. § 1332.”).
Page 7 PageID
To determine the citizenship of an LLC with multiple layers of members, like
the Post, courts must trace “through however many layers of members or partners
there may be, to determine the identity and citizenship of [the LLC’s] members.”
See CityPlace Retail, LLC v. Wells Fargo Bank N.A., 2021 WL 3486168, at *3 (11th
Cir. July 15, 2021). “[W]hen a member of an LLC is another LLC, . . . . it is necessary
to ‘drill down into the ownership flow chart’ . . . . no matter how many layers are
involved.” CareerStaff Unlimited, 2023 WL 2456493, at *1 (citations omitted);
see, e.g., Flintlock Constr. Servs., LLC v. Well-Come Holdings, LLC, 710 F.3d 1221,
1224 (11th Cir. 2013) (tracing the citizenship of limited liability companies through
their members to establish their citizenship for diversity purposes); Ramirez v.
Walmart Stores E., LP, 2023 WL 4030466, at *1 (M.D. Fla. June 15, 2023) (tracing
the citizenship of defendant Walmart, a limited partnership, through several layers
of its members including LLCs).
Tracing the Post’s citizenship through multiple layers of members, all of
which are themselves LLCs, leads to a single terminal member with citizenship “in
[his] own right,” Cableview, 2013 WL 12441093, at *2: Jeff Bezos, a natural person
who is a citizen of the State of Washington. See Corrected Removal Notice ¶ 12;
Original Removal Notice ¶ 12.4 Therefore, Washington is the Post’s sole state of
citizenship for diversity purposes.
As explained above, the Post is a Delaware limited liability company. Original Removal Notice
¶ 12; Corrected Removal Notice ¶ 12. Its sole member is Nash Holdings LLC, a Delaware LLC. Id.
Nash Holdings LLC’s two members are Nash Parallel Investment LLC, a Delaware LLC, and
Explore Holdings LLC, a Washington LLC. Id. Explore Holdings LLC is the only member of Nash
Page 8 PageID
The Post’s Delaware registration—which at first might “seem to defeat
diversity jurisdiction, because it would mean there are citizens of Delaware on both
sides of the suit”—is not relevant here because “an LLC is only a citizen of those
states where its members are citizens.”
Autumn Vista Holdings, LLC v.
Timbercreek Autumn Vista, L.P., 2017 WL 11692619, at *1 (N.D. Ga. Sept. 8, 2017)
(emphasis added) (citing Rolling Greens MHP, L.P., 374 F.3d at 1022). Simply
put, the Post “is in fact not a citizen of Delaware for the purposes of diversity
jurisdiction, because it does not have a member that is a citizen of Delaware” when
the citizenship of each member LLC is traced to its conclusion. Medlink Legal Sys.,
2021 WL 9940297, at *2.
Thus, the Post is a citizen of Washington state—and of Washington state
only—for the purposes of diversity jurisdiction. See, e.g., id.; Rolling Greens MHP,
L.P., 374 F.3d at 1022.
3.
There Is Complete Diversity Between the Parties.
As the Post is a citizen of Washington and TMTG is a citizen of Delaware and
Florida, there is complete diversity of citizenship between the parties to this case
as “no two adverse parties are citizens of the same state.” Ranbaxy Laboratories
Inc. v. First Databank, Inc., 826 F.3d 1334, 1338 (11th Cir. 2016).
Removal was therefore proper.
Because Plaintiff’s only argument for
remand fails, its Motion should be denied. See Medlink Legal Sys., 2021 WL
Parallel Investment LLC. Id. Explore Holdings LLC’s sole member is Jeff Bezos, a citizen of the
State of Washington. Id. Page 9 PageID
9940297, at *2 (denying motion to remand on diversity grounds because complete
diversity of citizenship existed between the adverse parties).
B.
THE POST PROPERLY CORRECTED ITS NOTICE OF
REMOVAL; THE JUDICIAL ESTOPPEL DOCTRINE DOES
NOT APPLY HERE.
Citing no authority, Plaintiff argues that the Post is “judicially estopped”
from contesting remand on the basis that the parties are completely diverse. Pl.’s
Remand Mot. ¶ 4. Plaintiff’s argument is predicated entirely on an error in
Paragraph 13 of the Post’s Original Removal Notice, id. ¶ 3, which inadvertently
identified the Post as a citizen of both Washington and Delaware, despite correctly
laying out in detail the membership of each component LLC in the preceding
paragraph, see Original Removal Notice ¶¶ 12–13. The Post promptly filed a
Corrected Notice of Removal clarifying that the State of Washington is the sole
state of which the Post is a citizen for the purposes of diversity jurisdiction. See
Corrected Removal Notice ¶ 13, at 1.
To start, the doctrine of judicial estoppel is not applicable here. “In diversity
cases, ‘the application of the doctrine of judicial estoppel is governed by state law.’”
Searcy v. R.J. Reynolds Tobacco Co., 902 F.3d 1342, 1358 n.7 (11th Cir. 2018)
(citation omitted). The doctrine “is used to prevent litigants from taking totally
inconsistent positions in separate proceedings, to the detriment of an adversary
common to both proceedings.” Endurance Am. Specialty Ins. Co. v. L. Pellinen
Constr., Inc., 2021 WL 5264673, at *5 (11th Cir. Nov. 12, 2021) (citing Blumberg v.
USAA Cas. Ins. Co., 790 So. 2d 1061, 1066 (Fla. 2001)) (internal quotation mark Page 10 PageID
omitted). Here, the Post has not made an inconsistent claim regarding the Post’s
citizenship, nor has it previously litigated this issue against TMTG. As such,
TMTG’s judicial estoppel argument is without merit.
Further, the Post properly corrected its Original Removal Notice to reflect
the Post’s citizenship for Section 1332(a) purposes. Even presuming that its error
constituted a material defect in the Original Removal Notice (and it did not), it is
well settled that “[d]efective allegations of jurisdiction may be amended, upon
terms, in the trial or appellate courts.” 28 U.S.C. § 1653. “The Eleventh Circuit
dictates a liberal approach with respect to permitting a defendant to correct
deficiencies of citizenship in a notice of removal.” Fin. Info. Technologies, Inc. v.
Lopez, 2016 WL 9049356, at *1 (M.D. Fla. Jan. 4, 2016). “[U]nless it is undisputed
from the record that diversity does not exist, a defendant’s failure to ‘demonstrate
diversity’ in the notice of removal is merely a procedural defect, and the defendant
must be given an opportunity to cure it.” See U.S. Bank Nat’l Ass’n v. Smith, F. App’x 827, 829 (11th Cir. 2017) (citing Corp. Mgmt. Advisors, Inc. v. Artjen
Complexus, Inc., 561 F.3d 1294, 1296–97 (11th Cir. 2009)) (per curiam) (emphasis
added) (original emphases omitted). The amendment of defective citizenship
allegations is permitted even after the 30-day removal period. See Landstar Glob.
Logistics, Inc. v. Total Transp. Serv., LLC, 2009 WL 997222, at *2 (M.D. Fla. Apr.
14, 2009) (“[C]ourts have allowed imperfect allegations of citizenship to be
amended beyond the statutory thirty-day period for removal.”). Page 11 PageID
Here, in spite of the Post’s error, the Original Removal Notice fully disclosed
the basis for diversity jurisdiction; indeed, it was clear from the citizenship analysis
in Paragraph 12 that the Post is not in fact a citizen of Delaware and that complete
diversity of citizenship exists between the Post and TMTG. See Original Removal
Notice ¶¶ 11–13; Corrected Removal Notice ¶¶ 11–13. Specifically, the initial notice
traced “through however many layers of members or partners there may be,”
making clear that the citizenship of the terminal owner was in Washington state
(and nowhere else). CityPlace Retail, 2021 WL 3486168, at *3.
A similar situation arose in Code Red Roofers, Inc. v. Hermitage Insurance
Co., where the defendant mistakenly stated in its notice of removal that it was a
citizen of Florida—a fact that, if true, would defeat diversity—when in truth it was
a citizen of New York, not Florida. 2008 WL 11331814, at *2 (S.D. Fla. Nov. 13,
2008). The defendant explained that this kind of error “may be amended beyond
the thirty day limit” for removal. Id. The court agreed, permitting the defendant
to correct its “technical error” pursuant to § 1653 given that there was “no
indication that [defendant] is a citizen of the State of Florida.” Id.
So too here. And as Code Red Roofers makes clear, correction of the notice
of removal was proper under these circumstances. See id.; see also, e.g., Lewis v.
D. Hays Trucking, Inc., 2008 WL 4664061, at *1 (N.D. Ga. Oct. 17, 2008) (denying
a motion to remand where the removal notice erroneously listed the defendant as
a “Georgia limited liability [sic]” instead of a Delaware corporation and permitting
amendment of the removal notice under § 1653). Page 12 PageID
As correction was proper, the Court should consider the Corrected Removal
Notice in deciding Plaintiff’s Motion to Remand. See Dye v. Sexton, 695 F. App’x
482, 485–86 (11th Cir. 2017) (per curiam) (“[T]he district court should have
permitted [defendant] to amend his notice of removal to cure his defective
allegation of citizenship, and it should have considered his amended notice of
removal in ruling on the plaintiffs’ motion to remand.”). The Corrected Removal
Notice leaves no doubt that this Court has subject matter jurisdiction over the
instant action pursuant to Section 1332(a).5 Accordingly, Plaintiff’s Motion should
be denied.
II.
ALTERNATIVELY, THE COURT SHOULD DENY TMTG’S
MOTION TO REMAND FOR FAILURE TO COMPLY WITH LOCAL
RULE 3.01(g).
TMTG’s failure to comply with the Local Rules of this Court provides an
independent basis for the Court to deny its Motion to Remand. Local Rule 3.01(g)
imposes a duty on movants to “confer with the opposing party in a good faith effort
to resolve the motion” prior to filing and include a certification to that effect at the
end of a motion. M.D. Fla. R. 3.01(g).
TMTG did not satisfy the conferral requirement of Local Rule 3.01(g), and,
consequently, did not include the requisite certification at the end of its Motion.
If for any reason the Court concludes that the Corrected Removal Notice is insufficient to
establish jurisdiction under § 1332(a), the Post requests the opportunity to amend it. Where, as
here, the substantive grounds for federal jurisdiction are evident, courts in the Eleventh Circuit
freely grant such amendment. See, e.g., Lewis, 2008 WL 4664061, at *1; cf. Corp. Mgmt.
Advisors, Inc., 561 F.3d at 1297 (“If a party fails to specifically allege citizenship in their notice of
removal, the district court should allow that party ‘to cure the omission,’ as authorized by § 1653.”
(citation omitted)). Page 13 PageID
See generally Pl.’s Remand Mot. This failure alone justifies denial of TMTG’s
Motion. See Faucett v. Busch Ent. Corp., 2007 WL 3047135, at *1 (M.D. Fla. Oct.
18, 2007) (striking a motion to remand for failure to comply with Local Rules
3.01(a) and 3.01(g)). If TMTG had conferred with the Post prior to filing its Motion
to Remand, the Post could have explained the basis for jurisdiction and corrected
the error, mooting the need for the Motion.
CONCLUSION
For the foregoing reasons, TMTG’s Motion to Remand should be denied.
Dated: July 26,
Respectfully submitted,
THOMAS & LoCICERO PL
WILLIAMS & CONNOLLY LLP
/s/ Carol Jean LoCicero
Carol Jean LoCicero (FBN 603030)
Linda R. Norbut (FBN 1011401)
601 South Boulevard
Tampa, FL Telephone: (813) 984-Facsimile: (813) 984-clocicero@tlolawfirm.com
lnorbut@tlolawfirm.com
/s/ Thomas G. Hentoff
Thomas G. Hentoff (pro hac vice)
Nicholas G. Gamse (pro hac vice)
680 Maine Avenue, S.W.
Washington, DC Telephone: (202) 434-Facsimile: (202) 480-thentoff@wc.com
ngamse@wc.com
Counsel for Defendant
Counsel for Defendant Page 14 PageID
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing document
is being electronically filed and will be furnished via CM/ECF and via Electronic
Mail on July 26, 2023, to:
Jason R. Kobal, Esquire
KOBAL LAW, P.A.
12169 W. Linebaugh Ave.
Tampa, FL koballaw@yahoo.com
Steven S. Biss, Esquire
300 West Main Street, Ste. Charlottesville, VA stevenbiss@earthlink.net
Counsel for Plaintiff
Counsel for Plaintiff
/s/ Thomas G. Hentoff
Thomas G. Hentoff
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
TRUMP MEDIA & TECHNOLOGY GROUP CORP.,
Plaintiff,
vs.
WP COMPANY LLC d/b/a The Washington Post,
Case No: 8:23-cv01535-TPB-AAS
Defendant.
____________________________________/
DEFENDANT WP COMPANY LLC’S OPPOSITION
TO PLAINTIFF’S MOTION TO REMAND
The sole basis for remand in Plaintiff Trump Media & Technology Group
Corp.’s (“TMTG”) Motion is an alleged lack of diversity of citizenship between the
plaintiff and defendant. (Doc. No. 7 “Pl.’s Remand Mot.” ¶¶ 2, 5). But TMTG is
wrong: The parties here are citizens of different states as required by 28 U.S.C.
§ 1332(a), and therefore this Court has subject matter jurisdiction over this case by
virtue of complete diversity of citizenship. Specifically, while TMTG is a citizen of
Florida and Delaware, Compl. ¶ 3, WP Company LLC d/b/a The Washington Post
(the “Post”), a limited liability company, is a citizen of only the state of its ultimate
member: the State of Washington, (Doc. No. 13 “Corrected Removal Notice” ¶¶ 12–
13).1 “An LLC’s membership, not its registration, determines its citizenship for
These dispositive jurisdictional facts were fully set forth in the Post’s original July 10, 2023
Notice of Removal. (Doc. No. 1 ¶¶ 12–13). The Post’s Corrected Removal Notice deleted an
erroneous reference to Delaware as an additional state of citizenship for the Post. See Corrected
Removal Notice ¶ 13, at 1.
1
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Case 8:23-cv-01535-TPB-AAS Document 16 Filed 07/26/23 Page 2 of 14 PageID 257
diversity purposes.” Ennis v. Flowers Baking Co. of Bradenton, LLC, 2007 WL
1068139, at *1 (M.D. Fla. Apr. 6, 2007) (collecting cases). The Post “is in fact not
a citizen of Delaware for the purposes of diversity jurisdiction, because it does not
have a member that is a citizen of Delaware.” Medlink Legal Sys., LLC v. QIMA
Ltd., 2021 WL 9940297, at *2 (S.D. Fla. Aug. 19, 2021).
TMTG’s Motion to Remand should be denied.
BACKGROUND
A.
TMTG
TMTG is a media and technology company that operates a “flagship social
media platform called ‘Truth Social.’” Compl. ¶ 1. TMTG is a Delaware corporation
with its headquarters in Sarasota, Florida. Id. ¶ 3.
B.
The Post
As explained in detail in both the original and corrected notices, the Post is
a limited liability company organized under the laws of Delaware. (Doc. No. 1
“Original Removal Notice” ¶ 12); Corrected Removal Notice ¶ 12. Its sole member
is Nash Holdings LLC, a limited liability company also organized under Delaware
law. Id. Nash Holdings LLC has two members: Nash Parallel Investment LLC,
organized under Delaware law, and Explore Holdings LLC, organized under the
laws of the State of Washington. Id. The sole member of Nash Parallel Investment
LLC is Explore Holdings LLC, itself. Id. And, finally, Explore Holdings LLC’s sole
member is Jeff Bezos, who is a citizen of the State of Washington. Id.
2
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The Complaint recognizes that the Post is a Delaware limited liability
company whose sole member is Nash Holdings LLC. Compl. ¶ 4. However, the
Complaint fails to trace Nash Holdings LLC’s citizenship through its various
members as is necessary to establish the Post’s citizenship for diversity purposes.
See id. Because Plaintiff has not—and indeed, cannot—offer any factual basis for
its legal conclusion that members of Nash Holdings LLC are Delaware citizens, id.,
the Court should disregard the allegation.
PROCEDURAL HISTORY
On May 13, 2023, the Post published an article titled “Trust Linked to
Porn-Friendly Bank Could Gain a Stake in Trump’s Truth Social” on its website.
Compl. ¶ 11. One week later, on May 20, TMTG filed this lawsuit in the Circuit
Court of the Twelfth Judicial Circuit in and for Sarasota County, Florida, asserting
claims of defamation and civil conspiracy. See Trump Media & Tech. Grp. Corp.
v. WP Co., Case No. 2023-CA-004552 (filed May 20, 2023). TMTG served a copy
of the Complaint on the Post on June 9. See Corrected Removal Notice ¶ 1.
On July 10, the Post timely removed the action to this Court pursuant to 28
U.S.C. § 1332(a). See Original Removal Notice. On July 12, TMTG moved to
remand the case to Florida state court. Pl.’s Remand Mot. Three days later, on
July 15, Plaintiff filed a Motion to Shorten Deadlines and Expedite, “request[ing]
the Court . . . shorten the deadline for briefing and expedite any hearing on
Plaintiff’s motion [to] remand this action.” (Doc. No. 11 “Motion to Expedite”).
On July 18, the Post filed a Corrected Notice of Removal, correcting the inadvertent
3
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inclusion of Delaware as one of the Post’s states of citizenship in its July 10 Notice
of Removal and clarifying that the State of Washington is the sole state of which
the Post is a citizen. Corrected Removal Notice at 1.
ARGUMENT
TMTG’s Motion to Remand should be denied on two independently
sufficient grounds. First, there is complete diversity of citizenship between the
parties as a matter of law. Second, TMTG failed to comply with the Local Rules of
this Court in filing its Motion to Remand without first conferring with the Post.
I.
THE COURT HAS ORIGINAL JURISDICTION OVER THIS
MATTER PURSUANT TO 28 U.S.C. § 1332(a).
A defendant may remove to federal court a state court civil action “of which
the district courts of the United States have original jurisdiction.” 28 U.S.C.
§ 1441(a). Federal district courts have “original jurisdiction” over civil actions
between “citizens of different States” where the amount in controversy “exceeds
the sum or value of $75,000.” 28 U.S.C. § 1332(a)(1). “The removing defendant
bears the burden of establishing federal jurisdiction.” Samples v. Geico Indem.
Co., 2019 WL 5863902, at *1 (M.D. Fla. Nov. 8, 2019) (citing Adventure Outdoors,
Inc. v. Bloomberg, 552 F.3d 1290, 1294 (11th Cir. 2008)).
Here, TMTG challenges only one of the requirements for jurisdiction under
§ 1332(a)—that the civil action be between citizens of different states. See Pl.’s
Remand Mot. It is clear from the face of the Complaint that the amount in
controversy here exceeds $75,000. See Corrected Removal Notice ¶ 14; Original
Removal Notice ¶ 14; Compl. at 1, 18–19 (seeking $3.78 billion in damages).
4
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A.
The Parties Are Completely Diverse.
“[C]omplete diversity” of citizenship is required under § 1332(a), such that
“the citizenship of every plaintiff must be diverse from the citizenship of every
defendant.” Legg v. Wyeth, 428 F.3d 1317, 1321 n.2 (11th Cir. 2005) (citation
omitted). TMTG contends that it and the Post are both citizens of Delaware so “the
requirement of complete diversity is not met in this case.” Pl.’s Remand Mot. ¶¶ 2–
5. Plaintiffs are wrong because, for diversity jurisdiction purposes, the Post is a
citizen of only the State of Washington, not Delaware.2
1.
TMTG Is a Citizen of Delaware and Florida.
TMTG is a citizen of Delaware and Florida. See Compl. ¶ 3; Corrected
Removal Notice ¶ 11; Original Removal Notice ¶ 11. A corporation is a citizen of
the state(s) in which it (1) is incorporated and (2) has its principal place of business.
See 28 U.S.C. § 1332(c)(1); cf. Hertz Corp. v. Friend, 559 U.S. 77, 81 (2010) (noting
a company’s principal place of business “will typically be found at a corporation’s
headquarters”). Plaintiff acknowledges that TMTG is incorporated in Delaware
and has its principal place of business in Sarasota, Florida. See Pl.’s Remand Mot.
¶ 1; Compl. ¶¶ 1, 3 (describing TMTG as a “Sarasota-based media and technology
company”).
TMTG’s remand motion does not challenge the jurisdictional facts alleged in the Original
Removal Notice, see Pl.’s Remand Mot., which in any event are matters of public record. Rather,
TMTG’s sole basis for remand is the (now corrected) assertion on the face of the Original Removal
Notice that the Post is a citizen of Delaware.
2
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2.
The Post Is a Citizen of Washington.
The Post, a limited liability company, is a citizen of the State of Washington
only, not Delaware.
That the Post is a Delaware LLC—that is, a limited liability company
organized in Delaware—is disregarded for diversity purposes because an LLC “is
not a ‘citizen’ under 28 U.S.C. § 1332(a) in its own right.” Cableview Commc’ns of
Jacksonville, Inc. v. Time Warner Cable Se. LLC, 2013 WL 12441093, at *2 (M.D.
Fla. May 6, 2013) (citing Xaros v. U.S. Fidelity & Guaranty Co., 820 F.2d 1176,
1181 (11th Cir. 1987)). “Citizenship of a limited liability company is determined by
the citizenship of each member, as opposed to the state of formation or its principal
place of business.” Worldquest Resort Condo. Owners Ass’n, Inc. v. Hotwire
Commc’ns, Ltd, 2021 WL 8363023, at *1 (M.D. Fla. Dec. 28, 2021) (citing Rolling
Greens MHP, L.P. v. Comcast SCH Holdings L.L.C., 374 F.3d 1020, 1022 (11th Cir.
2004) (per curiam)).3 Thus, “a limited liability company is not, without more, a
citizen of the state that created the entity or the state where it has its principal place
of business[.]” OLGA Baker #2, LLC v. ACE Ins. Co. of the Midwest, 2020 WL
7684942, at *1 (M.D. Fla. Oct. 14, 2020).
See also, e.g. CareerStaff Unlimited, LLC v. Port Charlotte OPCO, LLC, 2023 WL 2456493, at
*1 (M.D. Fla. Mar. 10, 2023) (“[T]he domicile of an LLC is not determined by its state of
organization, but by the domicile of its individual members.”); Underwriters at Lloyd's, London
v. Osting-Schwinn, 613 F.3d 1079, 1086 (11th Cir. 2010) (“For well over a century, federal law has
drawn a sharp distinction between corporations and virtually every other form of association for
purposes of determining diversity of citizenship. On the one hand, corporations are considered
legal persons whose citizenship does not depend on that of their shareholders . . . . unincorporated
associations do not themselves have any citizenship, but instead must prove the citizenship of
each of their members to meet the jurisdictional requirements of 28 U.S.C. § 1332.”).
3
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To determine the citizenship of an LLC with multiple layers of members, like
the Post, courts must trace “through however many layers of members or partners
there may be, to determine the identity and citizenship of [the LLC’s] members.”
See CityPlace Retail, LLC v. Wells Fargo Bank N.A., 2021 WL 3486168, at *3 (11th
Cir. July 15, 2021). “[W]hen a member of an LLC is another LLC, . . . . it is necessary
to ‘drill down into the ownership flow chart’ . . . . no matter how many layers are
involved.” CareerStaff Unlimited, 2023 WL 2456493, at *1 (citations omitted);
see, e.g., Flintlock Constr. Servs., LLC v. Well-Come Holdings, LLC, 710 F.3d 1221,
1224 (11th Cir. 2013) (tracing the citizenship of limited liability companies through
their members to establish their citizenship for diversity purposes); Ramirez v.
Walmart Stores E., LP, 2023 WL 4030466, at *1 (M.D. Fla. June 15, 2023) (tracing
the citizenship of defendant Walmart, a limited partnership, through several layers
of its members including LLCs).
Tracing the Post’s citizenship through multiple layers of members, all of
which are themselves LLCs, leads to a single terminal member with citizenship “in
[his] own right,” Cableview, 2013 WL 12441093, at *2: Jeff Bezos, a natural person
who is a citizen of the State of Washington. See Corrected Removal Notice ¶ 12;
Original Removal Notice ¶ 12.4 Therefore, Washington is the Post’s sole state of
citizenship for diversity purposes.
As explained above, the Post is a Delaware limited liability company. Original Removal Notice
¶ 12; Corrected Removal Notice ¶ 12. Its sole member is Nash Holdings LLC, a Delaware LLC. Id.
Nash Holdings LLC’s two members are Nash Parallel Investment LLC, a Delaware LLC, and
Explore Holdings LLC, a Washington LLC. Id. Explore Holdings LLC is the only member of Nash
4
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The Post’s Delaware registration—which at first might “seem to defeat
diversity jurisdiction, because it would mean there are citizens of Delaware on both
sides of the suit”—is not relevant here because “an LLC is only a citizen of those
states where its members are citizens.”
Autumn Vista Holdings, LLC v.
Timbercreek Autumn Vista, L.P., 2017 WL 11692619, at *1 (N.D. Ga. Sept. 8, 2017)
(emphasis added) (citing Rolling Greens MHP, L.P., 374 F.3d at 1022). Simply
put, the Post “is in fact not a citizen of Delaware for the purposes of diversity
jurisdiction, because it does not have a member that is a citizen of Delaware” when
the citizenship of each member LLC is traced to its conclusion. Medlink Legal Sys.,
2021 WL 9940297, at *2.
Thus, the Post is a citizen of Washington state—and of Washington state
only—for the purposes of diversity jurisdiction. See, e.g., id.; Rolling Greens MHP,
L.P., 374 F.3d at 1022.
3.
There Is Complete Diversity Between the Parties.
As the Post is a citizen of Washington and TMTG is a citizen of Delaware and
Florida, there is complete diversity of citizenship between the parties to this case
as “no two adverse parties are citizens of the same state.” Ranbaxy Laboratories
Inc. v. First Databank, Inc., 826 F.3d 1334, 1338 (11th Cir. 2016).
Removal was therefore proper.
Because Plaintiff’s only argument for
remand fails, its Motion should be denied. See Medlink Legal Sys., 2021 WL
Parallel Investment LLC. Id. Explore Holdings LLC’s sole member is Jeff Bezos, a citizen of the
State of Washington. Id.
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9940297, at *2 (denying motion to remand on diversity grounds because complete
diversity of citizenship existed between the adverse parties).
B.
THE POST PROPERLY CORRECTED ITS NOTICE OF
REMOVAL; THE JUDICIAL ESTOPPEL DOCTRINE DOES
NOT APPLY HERE.
Citing no authority, Plaintiff argues that the Post is “judicially estopped”
from contesting remand on the basis that the parties are completely diverse. Pl.’s
Remand Mot. ¶ 4. Plaintiff’s argument is predicated entirely on an error in
Paragraph 13 of the Post’s Original Removal Notice, id. ¶ 3, which inadvertently
identified the Post as a citizen of both Washington and Delaware, despite correctly
laying out in detail the membership of each component LLC in the preceding
paragraph, see Original Removal Notice ¶¶ 12–13. The Post promptly filed a
Corrected Notice of Removal clarifying that the State of Washington is the sole
state of which the Post is a citizen for the purposes of diversity jurisdiction. See
Corrected Removal Notice ¶ 13, at 1.
To start, the doctrine of judicial estoppel is not applicable here. “In diversity
cases, ‘the application of the doctrine of judicial estoppel is governed by state law.’”
Searcy v. R.J. Reynolds Tobacco Co., 902 F.3d 1342, 1358 n.7 (11th Cir. 2018)
(citation omitted). The doctrine “is used to prevent litigants from taking totally
inconsistent positions in separate proceedings, to the detriment of an adversary
common to both proceedings.” Endurance Am. Specialty Ins. Co. v. L. Pellinen
Constr., Inc., 2021 WL 5264673, at *5 (11th Cir. Nov. 12, 2021) (citing Blumberg v.
USAA Cas. Ins. Co., 790 So. 2d 1061, 1066 (Fla. 2001)) (internal quotation mark
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omitted). Here, the Post has not made an inconsistent claim regarding the Post’s
citizenship, nor has it previously litigated this issue against TMTG. As such,
TMTG’s judicial estoppel argument is without merit.
Further, the Post properly corrected its Original Removal Notice to reflect
the Post’s citizenship for Section 1332(a) purposes. Even presuming that its error
constituted a material defect in the Original Removal Notice (and it did not), it is
well settled that “[d]efective allegations of jurisdiction may be amended, upon
terms, in the trial or appellate courts.” 28 U.S.C. § 1653. “The Eleventh Circuit
dictates a liberal approach with respect to permitting a defendant to correct
deficiencies of citizenship in a notice of removal.” Fin. Info. Technologies, Inc. v.
Lopez, 2016 WL 9049356, at *1 (M.D. Fla. Jan. 4, 2016). “[U]nless it is undisputed
from the record that diversity does not exist, a defendant’s failure to ‘demonstrate
diversity’ in the notice of removal is merely a procedural defect, and the defendant
must be given an opportunity to cure it.” See U.S. Bank Nat’l Ass’n v. Smith, 693
F. App’x 827, 829 (11th Cir. 2017) (citing Corp. Mgmt. Advisors, Inc. v. Artjen
Complexus, Inc., 561 F.3d 1294, 1296–97 (11th Cir. 2009)) (per curiam) (emphasis
added) (original emphases omitted). The amendment of defective citizenship
allegations is permitted even after the 30-day removal period. See Landstar Glob.
Logistics, Inc. v. Total Transp. Serv., LLC, 2009 WL 997222, at *2 (M.D. Fla. Apr.
14, 2009) (“[C]ourts have allowed imperfect allegations of citizenship to be
amended beyond the statutory thirty-day period for removal.”).
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Here, in spite of the Post’s error, the Original Removal Notice fully disclosed
the basis for diversity jurisdiction; indeed, it was clear from the citizenship analysis
in Paragraph 12 that the Post is not in fact a citizen of Delaware and that complete
diversity of citizenship exists between the Post and TMTG. See Original Removal
Notice ¶¶ 11–13; Corrected Removal Notice ¶¶ 11–13. Specifically, the initial notice
traced “through however many layers of members or partners there may be,”
making clear that the citizenship of the terminal owner was in Washington state
(and nowhere else). CityPlace Retail, 2021 WL 3486168, at *3.
A similar situation arose in Code Red Roofers, Inc. v. Hermitage Insurance
Co., where the defendant mistakenly stated in its notice of removal that it was a
citizen of Florida—a fact that, if true, would defeat diversity—when in truth it was
a citizen of New York, not Florida. 2008 WL 11331814, at *2 (S.D. Fla. Nov. 13,
2008). The defendant explained that this kind of error “may be amended beyond
the thirty day limit” for removal. Id. The court agreed, permitting the defendant
to correct its “technical error” pursuant to § 1653 given that there was “no
indication that [defendant] is a citizen of the State of Florida.” Id.
So too here. And as Code Red Roofers makes clear, correction of the notice
of removal was proper under these circumstances. See id.; see also, e.g., Lewis v.
D. Hays Trucking, Inc., 2008 WL 4664061, at *1 (N.D. Ga. Oct. 17, 2008) (denying
a motion to remand where the removal notice erroneously listed the defendant as
a “Georgia limited liability [sic]” instead of a Delaware corporation and permitting
amendment of the removal notice under § 1653).
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As correction was proper, the Court should consider the Corrected Removal
Notice in deciding Plaintiff’s Motion to Remand. See Dye v. Sexton, 695 F. App’x
482, 485–86 (11th Cir. 2017) (per curiam) (“[T]he district court should have
permitted [defendant] to amend his notice of removal to cure his defective
allegation of citizenship, and it should have considered his amended notice of
removal in ruling on the plaintiffs’ motion to remand.”). The Corrected Removal
Notice leaves no doubt that this Court has subject matter jurisdiction over the
instant action pursuant to Section 1332(a).5 Accordingly, Plaintiff’s Motion should
be denied.
II.
ALTERNATIVELY, THE COURT SHOULD DENY TMTG’S
MOTION TO REMAND FOR FAILURE TO COMPLY WITH LOCAL
RULE 3.01(g).
TMTG’s failure to comply with the Local Rules of this Court provides an
independent basis for the Court to deny its Motion to Remand. Local Rule 3.01(g)
imposes a duty on movants to “confer with the opposing party in a good faith effort
to resolve the motion” prior to filing and include a certification to that effect at the
end of a motion. M.D. Fla. R. 3.01(g).
TMTG did not satisfy the conferral requirement of Local Rule 3.01(g), and,
consequently, did not include the requisite certification at the end of its Motion.
If for any reason the Court concludes that the Corrected Removal Notice is insufficient to
establish jurisdiction under § 1332(a), the Post requests the opportunity to amend it. Where, as
here, the substantive grounds for federal jurisdiction are evident, courts in the Eleventh Circuit
freely grant such amendment. See, e.g., Lewis, 2008 WL 4664061, at *1; cf. Corp. Mgmt.
Advisors, Inc., 561 F.3d at 1297 (“If a party fails to specifically allege citizenship in their notice of
removal, the district court should allow that party ‘to cure the omission,’ as authorized by § 1653.”
(citation omitted)).
5
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See generally Pl.’s Remand Mot. This failure alone justifies denial of TMTG’s
Motion. See Faucett v. Busch Ent. Corp., 2007 WL 3047135, at *1 (M.D. Fla. Oct.
18, 2007) (striking a motion to remand for failure to comply with Local Rules
3.01(a) and 3.01(g)). If TMTG had conferred with the Post prior to filing its Motion
to Remand, the Post could have explained the basis for jurisdiction and corrected
the error, mooting the need for the Motion.
CONCLUSION
For the foregoing reasons, TMTG’s Motion to Remand should be denied.
Dated: July 26, 2023
Respectfully submitted,
THOMAS & LoCICERO PL
WILLIAMS & CONNOLLY LLP
/s/ Carol Jean LoCicero
Carol Jean LoCicero (FBN 603030)
Linda R. Norbut (FBN 1011401)
601 South Boulevard
Tampa, FL 33606
Telephone: (813) 984-3060
Facsimile: (813) 984-3070
clocicero@tlolawfirm.com
lnorbut@tlolawfirm.com
/s/ Thomas G. Hentoff
Thomas G. Hentoff (pro hac vice)
Nicholas G. Gamse (pro hac vice)
680 Maine Avenue, S.W.
Washington, DC 20024
Telephone: (202) 434-5000
Facsimile: (202) 480-8371
thentoff@wc.com
ngamse@wc.com
Counsel for Defendant
Counsel for Defendant
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing document
is being electronically filed and will be furnished via CM/ECF and via Electronic
Mail on July 26, 2023, to:
Jason R. Kobal, Esquire
KOBAL LAW, P.A.
12169 W. Linebaugh Ave.
Tampa, FL 33626
koballaw@yahoo.com
Steven S. Biss, Esquire
300 West Main Street, Ste. 102
Charlottesville, VA 22903
stevenbiss@earthlink.net
Counsel for Plaintiff
Counsel for Plaintiff
/s/ Thomas G. Hentoff
Thomas G. Hentoff
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