Williams v. Sheraton Inns, Inc., 514 F. Supp. 22 (E.D. Tenn. 1980)

James W. Parnell, Jr., Franklin, Tenn., for plaintiffs.

Howard H. Vogel, Knoxville, Tenn., for Sheraton Inns, Inc. and Kevin Foley.

Thomas D. Frost, Kingsport, Tenn., for Gary L. Taylor and Albert C. Stapleton.

ROBERT L. TAYLOR, District Judge.

Kevin Foley, Sheraton Inns, Inc. and Shag Associates, Ltd. have moved the Court to dismiss the case for lack of jurisdiction. In their amended complaint, plaintiffs say that Charles N. Robbins and wife, Janet Robbins are limited partners in defendant Shag Associates, Ltd., and that they reside in Ramer, Alabama. The complaint shows that plaintiffs reside in Tuscaloosa, Alabama. Defendants say that, therefore, diversity of citizenship does not exist between Mr. and Mrs. Robbins and the plaintiffs, and that this deprives the Court of jurisdiction over the case.

Although the courts are not in agreement as to whether or not limited partners are taken into consideration in determining whether or not diversity of citizenship exists, the majority of the courts hold that the residence of limited partners is not to be considered in determining diversity of citizenship. Accordingly, the Court holds that the residency of the limited partners in Alabama does not deprive the Court of jurisdiction over them. See Colonial Realty Corp. v. Bache & Co., 358 F.2d 178 (2nd Cir. 1966) (opinion by Friendly, J.)

The following cases are in accord with the Colonial Realty decision: C. P. Robinson Constr. Co. v. National Corp. for Hous. Partnership, 375 F. Supp. 446 (M.D.N.C. 1974); Sands v. Geller, 321 F. Supp. 558 (S.D.N.Y.1970); Rocket Oil & Gas Co. v. Arkla Exploration Company, 435 F. Supp. 1303 (W.D.Okla.1977). See also Erving v. Virginia Squires Basketball Club, 349 F. Supp. 709 (E.D.N.Y.1972); Woodward v. D. H. Overmeyer, 428 F.2d 880 (2nd Cir. 1970); Lewis v. Odell, 503 F.2d 445 (2nd Cir. 1974); Boise Cascade Corp. v. Wheller, 419 F. Supp. 98 (S.D.N.Y.1976). Contra, Carlsberg Resources Corp. v. Cambria Savings and Loan Association, 554 F.2d 1254 (3rd Cir. 1977); Limbach Company v. Renaissance Center Partnership, 457 F. Supp. 347 (D.C.Pa.1978).

It is, accordingly, ORDERED that the motion to dismiss by defendants Foley, Sheraton Inns, Inc. and Shag Associates, Ltd., be, and the same hereby is, denied.

Order Accordingly.