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Awad v. First Tower Funding LLC

United States District Court, D. Massachusetts

June 8, 2018

BASSAM AWAD, Plaintiff,
v.
FIRST TOWER FUNDING, LLC and FRED LEVITAN, Defendants.

          MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' MOTION TO DISMISS

          Judith Gail Dein, United States Magistrate Judge

         I. INTRODUCTION

         The pro se plaintiff, Bassam Awad, claims that he was discriminated against in housing because of his perceived national origin (he identifies as Egyptian, but believes the defendants thought he was Lebanese or Palestinian) and religion (Christian Coptic Orthodox). The residence in question is an apartment he rents with his fiancé. Awad brought suit against First Tower Funding LLC (the company that manages the building) and Fred Levitan (the company's agent).[1] The crux of the complaint is that Awad's fiancé was on the lease for the apartment, the defendants allegedly refused to add Awad to the lease for discriminatory reasons, and the defendants wrongfully refused to renew the lease and threatened Awad's fiancé with eviction for having an unauthorized male occupant (Awad) living in the apartment. Awad contends that this was due to marital status discrimination. In his complaint, Awad lists diversity of citizenship as the basis for federal court jurisdiction, and does not identify any federal statute, federal treaty and/or provision of the United States Constitution as being at issue in this case. See Docket No. 1 at § II. Nevertheless, he alleges a violation of various state and federal housing and discrimination laws. See Docket No. 1-1.

         On March 8, 2018, the defendants filed a Motion to Dismiss the complaint in its entirety, pursuant to Fed.R.Civ.P. 12(b)(1)(3)(4)(5) & (6) & 12(h)(3). Docket No. 17. The defendants contend that this court lacks jurisdiction as there is no diversity between the parties, and that dismissal is warranted due to a prior pending action, insufficient service of process, failure to state a claim upon which relief can be granted, and collateral estoppel. Id. The plaintiff failed to file an Opposition to the motion to dismiss, which was due on March 22, 2018. The court, sua sponte, issued an order extending the time for the plaintiff to respond to April 23, 2018. Docket No. 20. No. response was filed by the plaintiff.

         On May 11, 2018 this court ordered First Tower Funding LLC to notify the court by way of affidavit if any of its members is a resident of Massachusetts so as to defeat diversity jurisdiction. Docket No. 21. On May 24, 2018, Evelyn Carabetta filed an affidavit, attesting to the fact that she is a member of the LLC and a resident of Massachusetts. Docket No. 22.

         After consideration of all the arguments, the defendants' motion to dismiss is ALLOWED.

         II. ANALYSIS

         A. This Court Lacks Diversity Jurisdiction

         To the extent that the plaintiff relies on diversity jurisdiction as a basis for this court's jurisdiction, this case must be dismissed as there is no diversity between the plaintiff and the defendants. Pursuant to 28 U.S.C. § 1332(a):

district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs, and is between -

         (1) citizens of different States[.]

         With respect to an LLC, its citizenship is determined by the citizenship of its members. Lincoln Benefit Life Co. v. AEI Life, LLC, 800 F.3d 99, 105 (3d Cir. 2015). “[T]he burden of proof is on the plaintiff to support allegations of jurisdiction with competent proof when the allegations are challenged by the defendant.” O'Toole v. Arlington Tr. Co., 681 F.2d 94, 98 (1st Cir. 1982).

         By his complaint, the plaintiff has alleged that he is a resident of Massachusetts. The affidavit of Ms. Carabetta establishes that the LLC defendant is also a resident of Massachusetts. Docket No. 22. The defendant Fred Levitan has also filed an affidavit attesting to the fact that he is a resident of Massachusetts. Docket No. 17 at Ex. N. There is no diversity jurisdiction in this court.

         B. This Action is Barred by the Doctrine of ...


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