The opinion of the court was delivered by: Susan Oki Mollway Chief United States District Judge
ORDER (1) DISMISSING AMENDED COMPLAINT WITH LEAVE TO AMEND, AND (2) AMENDING RULE 16 SCHEDULING ORDER TO ALLOW THE FILING OF DISPOSITIVE MOTIONS NO LATER THAN OCTOBER 22, 2012
Island Colony is a condominium project located in Waikiki. Its association of apartment owners, Third-Party Defendant Association of Apartment Owners of Island Colony ("AOAO"), is supposedly responsible for maintaining and repairing its common elements, including its swimming pool.
Defendant Island Colony Partners is a limited partnership that facilitates the rental of some of the Island Colony apartments to guests who reserve rooms at what is called "Island Colony Hotel." Island Colony Partners' general partner is Defendant 445 Seaside, Inc. Island Colony Partners' limited partners are those apartment owners who participate in the hotel rental program.
Defendant Aqua Hotels and Resorts, LLC, misidentified in the Complaint and Amended Complaint as "Aqua Hotels and Resorts US/Canada," supposedly operated and managed the Island Colony Hotel.
Jun Sung Kwak, a Korean citizen, stayed at the Island Colony Hotel. While swimming in the pool there, he had a medical emergency and drowned. This case is brought by his widow, Nam Soon Jeon, in her individual capacity and as Kwak's estate representative, and seeks damages arising out of his death. Jeon is also a Korean citizen.
Because Jeon fails to properly assert diversity jurisdiction on the face of the Amended Complaint and as a factual matter, the Amended Complaint is dismissed. Jeon is granted leave to file an amended complaint that drops Island Colony Partners, a nondiverse dispensable party, to cure the lack of subject matter jurisdiction. Jeon may not file the form of amended complaint she presently proposes, ECF No. 319-3, as that document is defective in not alleging the citizenship of any Defendant.
The court here considers whether it has subject matter jurisdiction over this action. This was a concern that the court itself raised with the parties. They initially filed position papers responsive to the court's concern, but eventually the court received a motion to dismiss for lack of subject matter jurisdiction. The court here determines that the party destroying diversity may, as requested by Jeon, be dismissed, leaving this court with diversity jurisdiction. The Amended Complaint, however, has pleading defects that, while not destroying diversity jurisdiction, cause this court to dismiss the pleading, with leave to amend.
Specifically, the court denies Jeon's request to file the proposed amended complaint attached to her cross-motion, because, like the existing Amended Complaint, it fails to allege the citizenship of any Defendant. The court therefore dismisses the Amended Complaint, but gives Jeon leave to file a Second Amended Complaint that drops Island Colony Partners as a Defendant and includes the required jurisdictional allegations. Because the Amended Complaint is dismissed, all pending motions are terminated without prejudice to being reactivated at the appropriate time without the need for refiling.
On January 7, 2011, "Plaintiffs Jun Sung Kwak[,] decedent, by his estate representative and wife, Nam Soon Jeon, Su-Min Kwak, Min-Seung Kwak, and Nam Soon Jeon" filed suit against Island Colony Hotel, Island Colony Partners, 445 Seaside, Inc., and Aqua Hotels and Resorts US/Canada. The Complaint sought damages arising out of Kwak's drowning in the swimming pool at the Island Colony Hotel. See ECF No. 1.
On February 18, 2011, Island Colony Partners and 445 Seaside, Inc., filed a Third Party Complaint against the AOAO. See ECF No. 10.
The Third-Party Complaint seeks a determination that, if Plaintiffs obtain a judgment against Island Colony Partners and 445 Seaside, the AOAO is liable to Island Colony Partners and 445 Seaside for the full amount of the judgment. The Third-Party Complaint also seeks a determination that the AOAO is a joint tortfeasor or otherwise liable based on the AOAO's relative degree of fault. See id. ¶¶ 1-2. Island Colony Partners and 445 Seaside seek "indemnification, subrogations, reimbursement[,] and/or contribution" from the AOAO. Id. ¶ 3.
On March 29, 2011, the AOAO filed a counterclaim against Island Colony Partners and 445 Seaside. See ECF No. 30. Id. That same day, the AOAO filed a cross-claim against Aqua Hotels. Id. Both the counterclaim and the cross-claim seek to hold other Defendants responsible for any and all damages awarded to Jeon and to have the relative degree of fault apportioned among Defendants. Id.
On June 6, 2012, Island Colony Partners and 445 Seaside filed a cross-claim against the AOAO, seeking to hold the AOAO responsible and to apportion the relative fault among Defendants. See ECF No. 303-2. The AOAO has moved to dismiss this cross-claim on the grounds that the claim is untimely and that the AOAO owed no duty to Kwak. See ECF No. 311.
On May 23, 2012, Jeon, individually and in her capacity as the estate administrator for Kwak, filed an Amended Complaint against Island Colony Partners, 445 Seaside and Aqua Hotels (collectively, "Defendants"). See ECF No. 279. The Amended Complaint dropped Kwak as a direct Plaintiff, and also dropped as claimants Kwak's children, Su-Min Kwak and Min-Seung Kwak. The Amended Complaint no longer seeks relief against Island Colony Hotel. Id. The Amended Complaint alleges that the remaining Defendants were responsible for Kwak's drowning in the Island Colony Hotel pool and asserts four claims: negligent maintenance of pool facility (Count 1); negligent security (Count 2); negligent failure to warn (Count 3); and wrongful death (Count 5). See ECF No. 1 (Jan. 7, 2011). Id. Although based on diversity jurisdiction, the Amended Complaint does not allege the citizenship of any Defendant. Id.
In preparing for the hearing in multiple dispositive motions, the court became concerned about whether it had subject matter jurisdiction. On June 1, 2012, the court, sua sponte, raised the issue of whether this case involved complete diversity. See ECF No. 295 and 296. The hearings on the dispositive motions were then continued to allow the parties to brief the issue. Id. On June 4, 2012, the court invited the parties to research the effect on diversity jurisdiction of having foreign citizens on both sides of the case. See ECF No. 297.
On June 20, 2012, Island Colony Partners and its general partner, 445 Seaside, filed a "position statement" regarding the court's diversity jurisdiction. See ECF No. 307. This "position statement" noted that Aqua Hotels is a Delaware corporation, the AOAO is a Hawaii nonprofit corporation, 445 Seaside is a Hawaii corporation, and Island Colony Partners is a limited partnership whose general partner is 445 Seaside and whose limited partners include Fujiya Co., Ltd, a Japan corporation, and Toa Biru Kogyo Kabushiki Kaisha, a Japan corporation. Id. Later that day, the court issued a minute order indicating that it would not dismiss the case without a motion giving all parties an opportunity to be heard. See ECF No. 308.
On July 3, 2012, Island Colony Partners and 445 Seaside filed the motion to dismiss for lack of subject matter jurisdiction, arguing that the Amended Complaint fails to allege the citizenship of any Defendant and therefore fails to allege facts indicating complete diversity. See ECF No. 315. The motion also sought dismissal on the factual ground that there were foreign nationals on both sides of the case, making complete diversity impossible. Id.
On July 5, 2012, the AOAO substantively joined in the motion to dismiss for lack of subject matter jurisdiction. See ECF No. 317. See also Local Rule ...