1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 APRIL MCKAY, Case No. 23-cv-03731-EMC

8 Plaintiff, ORDER DENYING PLAINTIFF’S 9 v. MOTION FOR A TEMPORARY RESTRAINING ORDER 10 FAY SERVICING, LLC, Docket No. 4 11 Defendant.

12 13 14 Plaintiff April McKay has filed a foreclosure-related suit against Defendant Fay Servicing, 15 LLC. Currently pending before the Court is her motion for a temporary restraining order 16 (“TRO”). In the motion, Ms. McKay asks that the Court enjoin a foreclosure sale of certain real 17 property located in Antioch, at least pending a hearing on a motion for a preliminary injunction. 18 Having considered the parties’ briefs and accompanying submissions, the Court hereby DENIES 19 Ms. McKay’s motion. 20 Fay Servicing has opposed Ms. McKay’s motion on the basis that the Court lacks subject 21 matter jurisdiction over the case. If the Court lacks subject matter jurisdiction, then it cannot issue 22 a TRO even if the TRO simply preserves the status quo. 23 In her complaint, Ms. McKay alleges that there is diversity jurisdiction because “all parties 24 are diverse and the amount in controversy exceeds $75,000.00.” Compl. ¶ 4. Fay Servicing 25 disputes this allegation, arguing that Ms. McKay appears to be a citizen of California and that it is 26 also a citizen of California. 27 1 The critical issue in the instant case is Fay Servicing’s citizenship.1 Fay Servicing is a 2 LLC. A LLC “is a citizen of every state of which its owners/members are citizens.” Johnson v. 3 Columbia Props. Anchorage, LP,

(9th Cir. 2006). “And because a member of a 4 limited liability company may itself have multiple members – and thus may itself have multiple 5 citizenships – the federal court needs to know the citizenship of each ‘sub-member’ as well.” 6 Delay v. Rosenthal Collins Grp., LLC,

(6th Cir. 2009); see also 19th Capital 7 Grp., Inc. v. 3 GGG's Truck Lines, Inc., No. CV 18-2493 PA (RAOx),

226595, at *4 (C.D. Cal. Apr. 3, 2018) (“An LLC’s citizenship is not determined by its place of 9 formation or principal place of business, but rather, by the citizenships of each of its members; 10 where an LLC is a member of another LLC, the citizenship of the ‘sub-member’ LLC is likewise 11 defined by the citizenships of its own members.”). Ms. McKay does not dispute that this is the 12 controlling law on citizenship of a LLC. 13 Fay Servicing has submitted a declaration from Michael Paterno. In his declaration, Mr. 14 Paterno testifies that he is an employee of Fay Servicing. He also testifies that, in his role at Fay 15 Servicing, he has “become familiar with Fay’s ownership.” Paterno Decl. ¶ 2. According to Mr. 16 Paterno, “Fay is a single member limited liability company that is wholly owned by Fay 17 Management, LLC. Fay Management, LLC is a limited liability company. Fay Management, 18 LLC has multiple individual members. At least one of the members of Fay Management, LLC is a 19 citizen of California.” Paterno Decl. ¶ 3. Mr. Paterno does not specifically identify the member of 20 Fay Management that is a citizen of California. 21 Ms. McKay criticizes the Paterno declaration, arguing that it does not specify Mr. 22 Paterno’s job title. See Reply at 2. She also contends that the declaration “does not provide 23 evidence to [the] fact” that “one member of the LLC is in California.” Reply at 2 (adding that 24 “citizenship is a question of fact”) (emphasis in original). She further asserts that the Court should 25 not make a decision on subject matter jurisdiction so early in the case – i.e., a factual record 26 should be developed on Fay Servicing’s citizenship. 27 1 The Court is not without some sympathy for Ms. McKay. However, at bottom, she misses 2 || the point that the declaration from Mr. Paterno is itself evidence and she has provided no evidence 3 to challenge his declaration which was submitted under penalty of perjury. The Court also notes 4 || that Rule 11 holds counsel for Fay Servicing accountable. 5 The Court therefore denies the motion for a TRO. The Court’s ruling here does not 6 || preclude Ms. McKay from seeking relief in state court, even while this action is still pending. The 7 Court is not at this time dismissing this case for lack of subject matter jurisdiction. Fay Servicing 8 || may bring such a motion if it wishes.” 9 This order disposes of Docket No. 4. 10 11 IT IS SO ORDERED. 12

13 Dated: July 28, 2023

4 LL © 15 _ eo EDWARD M. CHEN a 16 United States District Judge

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Z 18 19 20 21 22 23 24 25 26 27 28 > The Court notes that, apparently, the foreclosure sale has now been delayed. It had been set for July 31, 2023; it has now been postponed to August 15, 2023. See Def.’s Further Resp. at 2.