Tuesday, April 2, 2019

Still Howling at the Moon: Not All Businesses Are Corporations!

A new case from the Southern District of Texas recently appeared, and it is yet another case in which the entity type descriptions are, well, flawed. The case opens: 

Before the Court is the defendant’s, Arnold Development Group, LLC (the “defendant”) motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(2) and (3) (Dkt. No. 5), the plaintiff’s, Conesco Industries, LTD.; d/b/a DOKA USA, LTD. (the “plaintiff”) response to the defendant’s motion to dismiss (Dkt. No. 18) and the defendant’s reply in support of its motion (Dkt. No. 20).
 . . . .
The plaintiff is a New Jersey limited partnership doing business in Texas and throughout the United States. The defendant is a Missouri limited liability corporation.
CONESCO INDUSTRIES, LTD. d/b/a DOKA USA, LTD., Pl., v. ARNOLD DEVELOPMENT GROUP, LLC, Def.., 4:18-CV-02851, 2019 WL 1430112, at *1 (S.D. Tex. Mar. 29, 2019) (emphasis added). 
 
Everybody who reads this blog knew that was coming because I am writing about the case. Arnold Development Group, LLC, is not a limited liability corporation. It is a limited liability company.
 
So, fine, this kind of error is not remarkable, given my numerous posts on the subject. But the opinion, in the discussion section, follows with this gem: 
In the case before the Court, the defendant is a Missouri corporation and the plaintiff is a New Jersey corporation
Id. at *2. Nuh-uh.  The opinion had already established that we're dealing with a Missouri LLC and New Jersey limited partnership. Neither entity is a corporation.  
 
Fortunately, entity status here does not seem to have any clear impact on the personal jurisdiction analysis (this about specific jurisdiction), but still. The case was dismissed without prejudice, which means at least some of this language could come to bear in future versions of the litigation.  Here's hoping that the parties, and the next reviewing court (should there be one), are a little more careful with describing the entity types.  

https://lawprofessors.typepad.com/business_law/2019/04/still-howling-at-the-moon-not-all-businesses-are-corporations.html

Corporations, Joshua P. Fershee, Lawyering, LLCs, Partnership | Permalink

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