United States District Court, D. Connecticut
LOUIS FERRARA, MELISSA FERRARA, and NEW ENGLAND ALPACAS, Plaintiffs,
RYEN MUNRO and TRIPPING GNOME FARM, LLC, Defendants.
SECOND ORDER RE: SUBJECT MATTER JURISDICTION
CHARLES S. HAIGHT, JR. Senior United States District Judge.
Louis Ferrara, Melissa Ferrara, and New England Alpacas
(collectively, "Plaintiffs") commenced this action
against Defendants Ryen Munro and Tripping Gnome Farm, LLC
("Defendants"), seeking contractual damages
"arising from the Defendants' refusal to pay the
Plaintiffs commission on the Defendants' sale of certain
alpaca[s] to non-party Pamela Brewster and her company
Stillmeadow Farm, LLC, " located in Stonington,
Connecticut. Doc. 1 ("Complaint"), ¶ 1.
Because Plaintiffs failed to plead sufficient facts to
demonstrate subject matter jurisdiction in their Complaint,
the Court ordered the parties to submit Affidavits to
establish their citizenship for federal diversity
jurisdiction purposes. Doc. 18 (Order, dated November 22,
addition, Plaintiffs were directed to file an affidavit to
prove that their claims meet the jurisdictional minimum for
diversity of citizenship jurisdiction - exceeding $75, 000,
exclusive of interest and costs, 28 U.S.C. §
1332(a). The alleged contractual damages in the
action, without attorneys' fees, are "in no event .
. . less than fifty five thousand dollars ($55, 000.00),
" Doc. 1, ¶ 33. That phrasing, for jurisdictional
amount purposes, must be interpreted as no more than $55,
000. Consequently, Plaintiffs must establish that their
alleged past attorneys' fees of $25, 000 and/or expected
attorneys' fees of $30, 000, id., ¶¶
35-36, should be considered by the Court when calculating the
jurisdictional amount. To be more precise, Plaintiffs must
demonstrate a sufficient basis to include attorneys' fees
totaling $20, 001 to reach a claim "exceeding $75,
000": $55, 000 in contract damages plus $20, 001 in
attorneys' fees, which equals $75, 001.
order for the Court to consider these past and/or projected
attorneys' fees, Plaintiffs must show that such fees are
both "reasonable" in amount and based in law (on
contract or statutory language). See, e.g.,
Givens v. W.T. Grant Co., 457 F.2d 612, 614 (2d Cir.
1972), vacated on other grounds, 409 U.S. 56 (1972);
Kimm v. KCC Trading, Inc., 449 F.App'x 85, 86
(2d Cir. 2012).
compliance with the Court's Order [Doc. 18], Plaintiffs
have submitted a Joint Affidavit [Doc. 22] to establish the
citizenship of New England Alpacas and to demonstrate that
their claims meet the jurisdictional amount via inclusion of
attorneys' fees. Defendant Ryen Munro has filed an
Affidavit [Doc. 20] to establish the citizenship of Tripping
Gnome Farm, LLC ("TGF"). The Court now considers
these Affidavits to determine whether it has subject matter
jurisdiction so that the matter may proceed.
Citizenship of the Parties
previous Order [Doc. 18], the Court directed an officer or
owner of New England Alpacas to specify what kind of entity
it is (e.g, corporation, limited liability company)
and to prove its state(s) of citizenship. In response,
individual Plaintiffs Melissa Ferrara and Louis Ferrara now
jointly assert that they are married and "own and
operate" New England Alpacas together. Doc. 22
(Plaintiffs' Amended Affidavit), ¶ 4. Furthermore,
they clarify that "New England Alpacas" is simply a
"fictitious name" used by them to conduct their
business, an alpaca farm in Killingworth, Connecticut.
Id. It is neither a corporation nor a limited
liability company. "New England Alpacas" is simply
a "d/b/a" and "not a separate legal
Connecticut law, "a fictitious or assumed business name,
" a d/b/a, "is not a legal entity."
America's Wholesale Lender v. Pagano, 87
Conn.App. 474, 477 (2005) (holding that trial court had no
subject matter jurisdiction over suit brought by d/b/a, which
was not "a person in law or a legal entity with legal
capacity to sue"). Indeed, as the Connecticut Supreme
Court has recognized:
[I]t appears well settled that the use of a fictitious or
assumed business name does not create a separate legal entity
. . . [and that] [t]he designation [doing business as] . . .
is merely descriptive of the person or corporation who does
business under some other name. . . . [I]t signifies that the
individual is the owner and operator of the business whose
trade name follows his, and makes him personally liable for
the torts and contracts of the business.
Monti v. Wenkert, 287 Conn. 101, 135 (2008) (quoting
Edmands v. CUNO, Inc., 277 Conn. 425, 454
n. 17 (2006) (citations omitted)). See also Andreoni v.
Forest City Enterprises, Inc., 660 F.Supp.2d 254, 259-60
(D. Conn. 2009) (holding that d/b/a defendant "has no
legal existence, and thus no citizenship, aside from that of
the person or corporation who does business under [its]
name") (internal quotation marks omitted).
it is not a legal entity, "New England Alpacas"
will be removed as a named Plaintiff in this action. Rather,
the name "New England Alpacas" shall appear in the
caption as "merely descriptive" of the persons who
do business under its name, Melissa Ferrara and Louis
Ferrara. See Monti, 287 Conn at 135. The parties
whose citizenship is dispositive as Plaintiffs in this action
are the two Ferraras. Because the Ferraras were domiciled in
Connecticut at the commencement of this action, they are both
citizens of Connecticut. Doc. 22, ¶ 3.
previously alleged in the Complaint, individual Defendant
Ryen Munro is, and was at all relevant times, domiciled in
Maine. Doc. 1, ¶ 5. In his Declaration, he avers that he
is "a resident and citizen of Yarmouth, Maine."
Doc. 20 ("Second Declaration of Ryen Munro"),
¶ 2. He is a citizen of Maine.
addition, Defendant Ryen Munro declares that Defendant
Tripping Gnome Farm, LLC ("TGF") is a limited
liability company and that he and Ursula Munro are the only
two members of TGF. Id., ¶¶ 1, 4. Like
Ryen Munro, Ursula Munro "is a resident and citizen of
Yarmouth, Maine." Id., ¶¶ 4-5. In
fact, both Ryen Munro and Ursula Munro reside at the same
address: 67 Balsam Lane in Yarmouth, Maine. Id.,
¶¶ 2, 4. Because both members of TGF are citizens
of Maine, TGF is a citizen of Maine. See, e.g, Bayerische
Landesbank, New York Branch v. Aladdin Capital Mgmt.,
692 F.3d 42, 49 (2d Cir. 2012) ("a limited liability
company . . . takes the citizenship of each of its
based on the parties' affidavits, all Plaintiffs are
citizens of Connecticut and all Defendants are citizens of
Maine. There is complete diversity of citizenship between
each Plaintiff and both Defendants. See, e.g., St. Paul
Fire and Marine Ins. Co. v. Universal Builders Supply,
409 F.3d 73, 80 (2d Cir. 2005) ("Diversity is not
complete if any plaintiff is a citizen of the same state as
respect to attorneys' fees and the jurisdictional amount
for diversity, Plaintiffs were directed to show that the fees
were both reasonable and provided for by contract or state
statute. See Givens v. W. T. Grant Co., 457 F.2d
612, 614 (2d Cir. 1972) (citing Wright, Federal
Courts § 35, at 119 (1970); 1 Moore's
Federal Practice ¶ 0.99  (2d ed. 1964)). The
Court first examines Plaintiffs' allegations, by
Affidavit, regarding a contractual and/or statutory basis for
including such fees in the jurisdictional minimum.
"Attorney's fees that a plaintiff may collect under
contract or under an applicable fee-shifting statute may be
included in computing the jurisdictional minimum." James
Wm. Moore, et al., Moore's Federal Rules
Pamphlet ¶ 1332.5[d] (Matthew Bender 2009). If a
basis exists for finding the fees recoverable as a matter of
right, the Court will determine whether the amounts presented
respect to a contractual basis, Plaintiffs have produced a
copy of their alleged "Brokering and Boarding
Contract" (the "Agreement") with Defendants.
Doc. 22 ("Brokering and Boarding Contract"), at 11.
Plaintiffs allege in their Affidavit that the contract
"[a]ttached hereto as Exhibit A is a document containing
material terms of the agreement we entered with the
Defendant" and "[t]ogether with a number of emails
exchanged between the parties, these documents memorialize
the Contract as alleged in the Complaint." Doc. 22, at
¶ 5. They also state in their Complaint that "[o]n
or about June 17, 2011, Munro accepted the Plaintiffs'
offer to enter a contract which incorporated the terms of the
Plaintiffs' standing Brokering and Boarding Contract,
modified by the negotiations between the parties." Doc.
1, ¶ 16.
Court notes, however, that there is a disputed issue of fact
as to whether the parties actually entered a contract and
whether the Agreement Plaintiffs have presented to the Court
constitutes a contract between the parties. Defendant Ryan
Munro states in his initial Declaration that "[t]he
Plaintiffs and the Defendant Tripping Gnome Farm, LLC never
agreed on the terms of the Master Contract that was
sent" and "[t]his lawsuit is based on the unsigned,
draft Master Contract." Doc. 16, ¶¶ 8-9. The
alleged "Agreement, " as presented by Plaintiffs,
contains only the signatures of Melissa Ferrara and Louis
Ferrara. Doc. 22, p. 12. No signature of Ryen Munro, in
either his individual capacity or as manager of TGF, appears
on that contract.
Ryen Munro contends that there were separate sales contracts
between TGF and "[a] customer of the Plaintiffs"
for the sale of three animals; and Plaintiffs were to receive
a brokerage commission on the sale of only one animal in
those contracts. Doc. 16, ¶ 10. Munro alleges that the
sales contracts with the customer, likely Brewster, were
negotiated and consummated in Maine. Id.
plaintiff asserting subject matter jurisdiction has the
burden of proving by a preponderance of the evidence that it
exists." Makarova v. United States, 201 F.3d
110, 113 (2d Cir. 2000) (citing Malik v. Meissner,
82 F.3d 560, 562 (2d Cir.1996)). It thus follows that the
party asserting jurisdiction bears the burden of alleging
"a proper basis for jurisdiction in his pleadings and
must support those allegations with 'competent proof'
if a party opposing jurisdiction properly challenges those
allegations." Linardos v. Fortuna, 157 F.3d
945, 947 (2d Cir.1998). Affidavits may be used by either
party to challenge or support subject matter jurisdiction.
Antares Aircraft, L.P. v. Federal Republic of
Nigeria, 948 F.2d 90, 96 (2d Cir.1991), vacated on
other grounds, 505 U.S. 1215 (1992). See also
Makarova, 201 F.3d at 113 ("In resolving a motion
to dismiss for lack of subject matter jurisdiction under Rule
12(b)(1), a district court . . . may refer to evidence
outside the pleadings.").
general, the allegations contained in the complaint are
accepted as true and construed in the most favorable light
for the complainant. Atlantic Mut. Ins. Co. v. Balfour
Maclaine Int'l Ltd., 968 F.2d 196, 198 (2d
Cir.1992); Cedars-Sinai Med. Ctr. v. Watkins, 11
F.3d 1573, 1583 (Fed. Cir.1993). However, "a factual
challenge to subject matter jurisdiction allows only
uncontroverted factual allegations [to be] accepted as true .
. . ." Fisher v. F.B.I., 94 F.Supp.2d 213, 216
(D. Conn. 2000) (citing Cedars-Sinai, 11 F.3d at
facts in suit are viewed most favorably for the Plaintiffs,
there was a contract between the parties based on a draft
Agreement (Ex. A), which although unsigned, was accepted by
Defendants via a series of emails. The Plaintiffs, however,
have submitted no emails or "competent proof" in
support of their statement regarding emails exchanged between
the parties; and Defendant Ryen Munro states in his Affidavit
[Doc. 15] that the Agreement [Ex. A], as presented, was never
entered into between the parties.
existence of the contract thus remains an issue of fact.
See, e.g., Baron v. Maxam Initiation Sys.,
LLC, No. CV095005218S, 2010 WL 745495, at *3 (Conn.
Super. Ct. Jan. 26, 2010) ("The existence of a contract
is a question of fact to be determined by the trier on the
basis of all the evidence."). "The intention of the
parties manifested by their words and acts is essential to
determine whether a contract was entered into and what its
terms were." Finley v. Aetna Life & Cas.
Co., 202 Conn. 190, 199 (1987) (citation and internal
quotations marks omitted). Based on the facts presented, the
Court cannot determine whether the parties intended for
emails between them to constitute a binding agreement under
the terms of the draft Agreement, whether the parties
intended that the Agreement would not become final and
binding until a written agreement was fully negotiated and
signed by all parties, or whether there was no contract at
all. See, e.g., Baron, 2010 WL 745495, at *3. Absent
sufficient proof of a binding contract, the Court cannot
consider the terms of the alleged contract as the basis under
which to include attorneys' fees in calculating the
even if Plaintiffs were able to prove that the Agreement they
presented was a contract between the parties, the provision
regarding attorneys' fees is, in any event, too narrow to
encompass all of the fees Plaintiffs seek to include in the
jurisdictional amount. That cited provision regarding
attorneys' fees states:
Attorney's Fees: In any legal proceeding arising
out of this Agreement, the prevailing party shall be entitled
to their reasonable attorney's fees and costs of suit, in
addition to any other relief granted by the Court.
on this provision, Plaintiffs assert that the following
attorneys' fees should be considered as part of the
jurisdictional amount in this action: approximately
$6, 200 in fees for their Connecticut
attorney's attempts over many months, "prior to the
filing of any litigation, " to "negotiate in good
faith a non-judicial resolution to this matter with the
Defendants' Maine attorney, " Doc. 22,
¶¶14-16; $24, 000 in Connecticut
attorneys' fees and $13, 000 in Maine
counsel's fees in defending and securing the stay of a
declaratory judgment proceeding brought by Defendants in
Maine, id., ¶¶ 20-21; $36,
000 in fees by Connecticut counsel in a 2014 action
that Plaintiffs commenced in Connecticut Superior Court (the
"2014 Action") and failed to pursue after Defendant
Ryen Munro was dismissed as a defendant "on procedural
grounds, " id., ¶¶ 25-29;
$10, 000 in fees by Connecticut counsel in a
pursuing a second action in Connecticut state court (the
"2015 Action") under Conn. Gen. Stat. §
52-592(a), in which Ryen Munro was also dismissed as a
defendant, id., ¶¶ 32-35; and $33,
800 in projected fees in the present action,
id. ¶ 36.
arguendo for the moment that the Agreement presented
was a binding contract between the parties, the Court would
employ Connecticut's standard rule of contract
construction to interpret the terms of the
"Attorney's Fees" provision. Specifically,
Connecticut courts "accord the language employed in the
contract a rational construction based on its common, natural
and ordinary meaning and usage as applied to the subject
matter of the contract." Cantonbury Heights Condo.
Ass'n, Inc. v. Local Land Dev., LLC, 273
Conn. 724, 735 (2005) (citing Alstom Power, Inc. v.
Balcke-Durr, Inc., 269 Conn. 599, 610 (2004)).