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Fairhope Piggly Wiggly, Inc. v. PS 2 Led, Inc.

United States District Court, S.D. Alabama, Southern Division

March 15, 2017

FAIRHOPE PIGGLY WIGGLY, INC., and TOMMY CAIN, [1] Plaintiffs,
v.
PS 2 LED, INC., d/b/a PINNACLE LED SOLUTIONS, LLC, Defendant.

          ORDER

          KRISTI K. DuBOSE, CHIEF UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendant “PS 2 LED, Inc., d/b/a Pinnacle LED Solutions, LLC”s motion to compel arbitration and stay judicial proceedings (Doc. 5), Plaintiffs' response (Doc. 8) and said defendant's Reply (Doc. 9). However, at the outset, a sua sponte review of the Court's jurisdiction is merited.[2]

         I. Background

         The case concerns a dispute regarding an LED lighting project at the Fairhope Piggly Wiggly grocery store. Specifically, on December 15, 2016, Plaintiffs “Tommy Cain” (Cain) and “Fairhope Piggly Wiggly, Inc.” (Fairhope Piggly Wiggly) filed a complaint against Defendant “PS 2 LED, Inc., d/b/a Pinnacle LED Solutions, LLC” in the Circuit Court of Baldwin County, Alabama -- Fairhope Piggly Wiggly-Inc., et al v. PS 2 LED, Inc., d/b/a Pinnacle LED Solutions, LLC (Case No. 05-CV-2016-901424.00) - asserting: 1) declaratory judgment (i.e., to declare Plaintiffs are not bound by arbitration); 2) breach of contract; 3) fraud in the inducement; 4) fraudulent intentional misrepresentation of material facts; and 5) fraudulent suppression of material facts.[3] (Doc. 1-1). Defendant “PS 2 LED, Inc., d/b/a Pinnacle LED Solutions, LLC” was served on December 21, 2016. (Doc. 1). On January 17, 2017, Defendant “PS 2 LED, Inc., d/b/a Pinnacle LED Solutions, LLC”, timely removed Plaintiffs' case to this Court.

         II. Discussion

         Defendant “PS 2 LED, Inc., d/b/a Pinnacle LED Solutions, LLC”'s Notice of Removal (Notice) premises removal on the basis of federal diversity subject matter jurisdiction per 28 U.S.C.§ 1332(a) and 28 U.S.C. § 1441, alleging: 1) complete diversity of citizenship; and 2) that the amount in controversy exceeds $75, 000 as the entire contract between the parties “is valued at over $200, 000.”[4] Upon review of the record, it is unclear whether federal jurisdiction exists.[5]

         A. Diversity of Citizenship

         Despite Defendant “PS 2 LED, Inc., d/b/a Pinnacle LED Solutions, LLC”'s allegations, it is unclear whether the parties are completely diverse. As alleged: 1) Plaintiff Cain is the President and director of several Piggly Wiggly retail grocery stores including the Fairhope Piggly Wiggly, and is an Alabama resident. (Doc. 1 at 3; Doc. 1-1 at 2). Plaintiff Fairhope Piggly Wiggly is an Alabama corporation with its principal place of business in Fairhope, Alabama.[6] (Id.) Thus, it appears that Plaintiffs are citizens of Alabama.

         As to the citizenship of the defendant, it is questionable as to precisely who the defendant is and/or whether there are two. In this case, the Defendant is identified in the singular as “PS 2 LED, Inc., d/b/a Pinnacle LED Solutions, LLC.” “PSD 2 LED, Inc.” is a full-service LED lighting provider and a Texas corporation with its principal place of business in Dallas, Texas. (Doc. 1 at 4; Doc. 1-1 at 2). “PSD 2 LED, Inc.” is registered as a foreign corporation doing business in the State of Alabama and has been since April 10, 2015, with a registered office street and mailing address in Montgomery, Alabama.[7]

         However, it is questionable whether the “d/b/a Pinnacle LED Solutions, LLC” is the d/b/a for “PSD 2 LED, Inc., ” or is another defendant. This is because “Pinnacle LED Solutions, LLC” is also registered to do business in the State of Alabama -- as a foreign LLC -- with its registered office street and mailing address in Dothan, Alabama.[8] This stands in contradiction to what “d/b/a” normally signals; an assumed or fictitious name associated with a corporate entity that does not create a separate legal entity distinct from with which it is associated (e.g., the name an entity is commonly known as).

         The confusion warrants further explanation from the defendant. If “Pinnacle LED Solutions, LLC” is a proper defendant, then such must be corrected (and information as to any unincorporated entity (LLC, LP etc.) and its membership must be provided).[9]

         B. Amount in Controversy

         The Court is also not satisfied that Defendant has established the amount in controversy required for removal to this Court. Specifically, per the state court Complaint, Plaintiffs take issue with $11, 800.77 - the remaining balance on the lighting contract with Defendant, not the entire contract itself. Indeed, Plaintiffs allege only that the amount in controversy exceeds the minimum state jurisdiction limits - i.e., exceeds $10, 000.[10] As to damages, Plaintiffs allege:

1) Defendant's representation that the new lighting “would result in reduced utility costs” to Piggly Wiggly ...

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