Full opinion text
ORDER WOODLOCK, District Judge. Order entered adopting report and recommendations of Mag. Judge Robert B. Collings. REPORT AND RECOMMENDATION ON FACEBOOK DEFENDANTS’ MOTION TO DISMISS (# 94) COLLINGS, United States Magistrate Judge. I. Introduction To date the Court has issued two Memorandum and Procedural Orders (## 172, 230) and held a pair of evidentiary hearings, on June 22, 2006 and October 24, 2006 respectively, on the Facebook Defendants’ motion to dismiss (# 94). This Report and Recommendation regarding the disposition of that motion to dismiss shall be an amalgam of the two prior memoran-da, familiarity with which is assumed and which are incorporated herein by reference, as well as such additional analysis and discussion as is necessary to resolve the outstanding issues. II. Background A. Issues in First Memorandum (# 172) Defendants Mark Zuckerberg (hereinafter “Zuckerberg”), Eduardo Saverin, Dustin Moskovitz, Andrew McCollum, Christopher Hughes and the Facebook, Inc. (hereinafter collectively the “Defendants”) filed the motion to dismiss Plaintiff Con-nectU LLC’s (hereinafter “ConnectU” or the “Plaintiff’) complaint on several grounds, including lack of subject matter jurisdiction pursuant to Rule 12(b)(1), Fed. R.Civ.P. Specifically the Defendants contend that in the original complaint, jurisdiction was alleged to be premised solely upon diversity but that, as a matter of fact, diversity did not exist. The motion to dismiss has been referred to the undersigned for the preparation of a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). In 2004, the Supreme Court wrote as follows: It has long been the case that “the jurisdiction of the Court depends upon the state of things at the time of the action brought.” Molían v. Torrance, [22 U.S.] 9 Wheat. 537, 539, 6 L.Ed. 154 (1824). This time-of-fíling rule is horn-book law (quite literally) taught to first-year law students in any basic course on federal civil procedure. It measures all challenges to subject-matter jurisdiction premised upon diversity of citizenship against the state of facts that existed at the time of filing — whether the challenge be brought shortly after filing, after the trial, or even for the first time on appeal. (Challenges to subject-matter jurisdiction can of course be raised at any time prior to final judgment. See Capron v. Van Noorden, [6 U.S.] 2 Cranch 126, 2 L.Ed. 229 (1804).) We have adhered to the time-of-filing rule regardless of the costs it imposes. Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 570-571, 124 S.Ct. 1920, 158 L.Ed.2d 866 (2004)(footnote omitted). ConnectU argues that the question of diversity was rendered moot when the first amended complaint was filed on October 28, 2004, because the alleged basis for jurisdiction in that pleading was the existence of a federal question. According to the Plaintiff, case law and statute allow for any prior inadequacy in diversity jurisdiction to be “cured” by the subsequent amendment. In support of its position the Plaintiff relies on the case of Carlton v. Baww, Inc., 751 F.2d 781 (5 Cir., 1985). In Carlton, the plaintiff, a California resident, brought suit against the defendant, a resident of Texas, seeking “to void a fraudulent conveyance of real property.” Carlton, 751 F.2d at 783. The court acknowledged that “[diversity jurisdiction was therefore properly invoked when this suit was initially filed.” Carlton, 751 F.2d at 785. While the suit was ongoing, but before trial, the defendant filed for bankruptcy and the automatic stay halted the proceedings. Carlton, 751 F.2d at 783. The stay was ultimately lifted and the bankruptcy court allowed the trustee of the defendant’s estate to intervene in the original district court action. Carlton, 751 F.2d at 783. When the bankruptcy trustee was joined as a party-plaintiff to the action, diversity was destroyed. Carlton, 751 F.2d at 783, 787. However, the bankruptcy trustee was, at that juncture, “the only party who could prosecute” the district court lawsuit. Carlton, 751 F.2d at 786. The appeals court recognized that “if ... an amendment to the pleadings alters the nature of the action or adds a party without whom the case cannot continue, jurisdiction must be reassessed at the time of the change.” Carlton, 751 F.2d at 785 (citations omitted). On appeal it was argued by the appel-lees that, notwithstanding the failure of the jurisdictional basis asserted in their pleadings, subject matter jurisdiction exists because the trustee was acting pursuant to avoidance powers granted to him by the Bankruptcy Code. We agree. Section 1334 of Title 28, as amended by the Bankruptcy Amendments and Federal Judgeship Act of 1984 (the “1984 Act”), grants the district courts original jurisdiction of, among other things, “all civil proceedings arising under title 11, or arising in or related to cases under title 11.” 28 U.S.C. § 1334(b) (1984). A proceeding by a trustee to void a fraudulent conveyance clearly “arises under title 11.” Carlton, 751 F.2d at 787 (footnote omitted). Although the Fifth Circuit found that the district court had properly exercised jurisdiction, the complaint had never been “amended to state the new jurisdictional basis that arose when the trustee became a party.” Carlton, 751 F.2d at 789. To remedy the situation, the Fifth Circuit held that “pursuant to 28 U.S.C. § 1653, appellees should be given an opportunity to amend their pleadings to assert the correct jurisdictional basis for this lawsuit.” Carlton, 751 F.2d at 789. The primary point to be made with respect to the Carlton case is that the district court undeniably had jurisdiction at all times. When the complaint was filed, the district court had diversity jurisdiction. At the time the trustee was added, on the facts as they then existed, even if not expressly alleged, the district court had federal question jurisdiction. The question raised by the Defendants’ motion to dismiss in the instant matter is whether this Court, in fact, ever had subject matter jurisdiction based on diversity over the original complaint. The case of Blanchard v. Terry & Wright, Inc., 331 F.2d 467 (6 Cir.), cert, denied, 379 U.S. 831, 85 S.Ct. 62, 13 L.Ed.2d 40 (1964), another decision cited by the Plaintiff, is readily distinguishable from the situation at hand. In Blanchard, the court concluded that while there may have been some question as to whether diversity jurisdiction had been properly pled in the complaint, More important than the allegations in the complaint concerning diversity of citizenship were the allegations that the contract for the construction of the dam and spillway was with the United States, and that the bond was executed to guarantee the performance of that contract and the payment of all bills for labor and material furnished in connection therewith. In our opinion, these general allegations were sufficient to invoke jurisdiction under the Miller Act without the necessity of referring to the Act by name. Blanchard, 331 F.2d at 469. In other words, the court found that the factual allegations of the complaint supported federal question jurisdiction even though it was not the articulated basis for jurisdiction. There is no contention that the facts as alleged in the original complaint in this case would support an alternative basis for jurisdiction. ConnectU next points to Title 28 U.S.C. § 1653 which provides that “[d]e-fective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts.” Interpreting this statutory provision, the Supreme Court has written the following: The existence of federal jurisdiction ordinarily depends on the facts as they exist when the complaint is filed. See, e.g., Smith v. Sperling, 354 U.S. 91, 93, n. 1, 77 S.Ct. 1112, 1113, n. 1, 1 L.Ed.2d 1205 (1957). Like most general principles, however, this one is susceptible to exceptions, and the two that are potentially applicable here are reflected in 28 U.S.C. § 1653 and Rule 21 of the Federal Rules of Civil Procedure. We discuss each potential exception in turn. Title 28 U.S.C. § 1653, enacted as part of the revision of the Judicial Code in 1948, provides that “[djefective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts.” At first blush, the language of this provision appears to cover the situation here, where the complaint is amended to drop a nondiverse party in order to preserve statutory jurisdiction. But § 1653 speaks of amending “allegations of jurisdiction,” which suggests that it addresses only incorrect statements about jurisdiction that actually exists, and not defects in the jurisdictional facts themselves. Under this reading of the statute, which we believe is correct, § 1653 would apply if Bettison were, in fact, domiciled in a State other than Illinois or was, in fact, not a United States citizen, but the complaint did not so allege. It does not apply to the instant situation, where diversity jurisdiction does not, in fact, exist. Newmartr-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 830-831, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989) (emphasis in original) (superceded in part by statute as stated in Singh v. Daimler-Benz AG, 9 F.3d 303 (3 Cir., 1993); see also Mills v. State of Me., 118 F.3d 37, 53 (1 Cir., 1997)(“Speeifically, the Newman-Green Court refused to interpret section 1653 as ‘empowering] federal courts to amend a complaint so as to produce jurisdiction where none actually existed before.’ ”)). It is thus quite clear that if there was no diversity jurisdiction at the time the original complaint was filed, Title 28 U.S.C. § 1653 cannot somehow be utilized to extend the federal question jurisdiction alleged in the first amended complaint back to the initial filing in order to create jurisdiction where none existed. On the facts of this case, § 1653 is of no aid to ConnectU. The Plaintiffs argument that “any alleged lack of diversity became moot when ConnectU filed the Amended Complaint” (Response # 171 at 2) is not supported by another case upon which it relies, Wellness Community-National v. Wellness House, 70 F.3d 46 (7 Cir., 1995). Jurisdiction in the original complaint in Wellness Community-National was supported both by federal question and diversity jurisdiction. Wellness Community-National, 70 F.3d at 49. Prior to trial, the plaintiff filed a motion to amend the complaint to drop all of the federal claims and premise jurisdiction solely on diversity. Wellness Community-National, 70 F.3d at 49. It was in this context that the court wrote: In these circumstances, it is well established that the amended pleading supersedes the original pleading. See Nisbet v. Van Tuyl, 224 F.2d 66, 71 (7th Cir. 1955); Lubin v. Chicago Title and Trust Co., 260 F.2d 411, 413 (7th Cir.1958); Fry v. UAL Corp., 895 F.Supp. 1018 (N.D.Ill.1995). “Once an amended pleading is interposed, the original pleading no longer performs any function in the case.... [T]he original pleading, once superseded, cannot be utilized to cure defects in the amended pleading, unless the relevant portion is specifically incorporated in the new pleading.” 6 Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure § 1476 at 556-57, 559 (1990). Thus, our jurisdictional inquiry must proceed on the basis of the First Amended Complaint, not the original one. Wellness Community-National, 70 F.3d at 49. The Wellness Community-National decision does not stand for the proposition that an amended complaint can cure jurisdictional defects in an original complaint so as to avoid dismissal under Rule 12(b)(1). The Plaintiff has suggested no other exception to the general rule that diversity is determined at the time of the institution of the action that may be applicable, and the Court has found none. Therefore it is the general rule that shall be applied. The First Circuit recently had occasion to address a question of first impression which bears on the issue at hand: The citizenship of an unincorporated entity, such as a partnership, is determined by the citizenship of all of its members. Carden v. Arkoma Assoc., 494 U.S. 185, 195-96, 110 S.Ct. 1015,108 L.Ed.2d 157 (1990) (limited partnership). Neither the Supreme Court nor this circuit has yet directly addressed whether that rule also applies to limited liability companies. However, every circuit to consider this issue has held that the citizenship of a limited liability company is determined by the citizenship of all of its members. See Gen. Tech. Applications, Inc. v. Exro Ltda, 388 F.3d 114, 121 (4th Cir.2004); GMAC Commercial Credit LLC v. Dillard Dep’t Stores, Inc., 357 F.3d 827, 829 (8th Cir.2004); Rolling Greens MHP, L.P. v. Comcast SCH Holdings L.L.C., 374 F.3d 1020, 1022 (11th Cir.2004); Provident Energy Assocs. of Mont. v. Bullington, 77 Fed. Appx. 427, 428 (9th Cir.2003); Homfeld II, L.L.C. v. Comair Holdings, Inc., 53 Fed.Appx. 731, 732-33 (6th Cir.2002); Handelsman v. Bedford Vill. Assocs. Ltd. P’ship, 213 F.3d 48, 51-52 (2d Cir. 2000); Cosgrove v. Bartolotta, 150 F.3d 729, 731 (7th Cir.1998); see also 13B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure: Juris.2d § 3630 (Supp. 2005). We see no reason to depart from this well-established rule. Pramco, LLC ex rel. CFSC Consortium, LLC v. San Juan Bay Marina, Inc., 435 F.3d 51, 54-55 (1 Cir., 2006); see also JMTR Enterprises, L.L.C. v. Duchin, 42 F.Supp.2d 87, 93-94 (D.Mass., 1999). Consequently, although it is alleged that “ConnectU LLC is a limited liability corporation of the State of Delaware” (# 1 ¶ 4), it is the citizenship of the members of ConnectU that must be considered when determining the diversity, or lack thereof, among the parties. The members of Con-nectU are Cameron Winklevoss, Tyler Winklevoss, Howard Winklevoss and Div-ya Narendra (hereinafter “Narendra”). (Declaration of Monte M.F. Cooper (# 95), Exh. 6(# 99) at pp. 2,15, 49) In the complaint, ConnectU alleged that “[u]pon information and belief, Defendant Mark Zuckerberg is an individual with a place of residence in the State of New York.” (#1 ¶ 5) In the Answer Of All Defendants To First Amended Complaint, Counterclaims Of Mark Zuckerberg And The Facebook, Inc., And Jury Demand (# 14), it is stated that “Defendants deny the allegations in Paragraph 5” of the complaint. (# 14 ¶ 5) In the Counterclaims, it is alleged that “[additional defendant on counterclaim Divya Narendra (“Naren-dra”) is, upon information and belief, a citizen of the State of New York.” (# 14 ¶ 6). In the Counterclaim Defendants’ Reply To Counterclaims Of The Facebook, Inc. And Mark Zuckerberg, it is stated that “Counterclaim Defendant Divya Nar-endra admits that he is a resident of the State of New York.” (# 20 ¶ 6) Based on these pleadings, it was impossible to determine the citizenship of Narendra or Zuck-erberg. Moreover, the parties had proffered no additional admissible evidence for the Court to consider. The upshot was that it simply could not be decided on the then present record whether diversity existed at the time the original complaint was filed. An evidentiary hearing was scheduled for June 22, 2006, with the parties being granted leave to conduct limited discovery in advance of the hearing on the question of the citizenship of Narendra and Zuckerberg at the time that the original complaint was filed. On June 12, 2006, ConnectU filed a Motion for Leave to File Plaintiffs Supplemental Brief in Opposition to Motion to Dismiss, Presenting New Evidence and Supplemental Authority in View of Pram-co (# 181), together with various declarations and exhibits (## 182 and Exh. 1-23, 183, 184, 185, 187, 198). In these filings the Plaintiff advanced the argument, inter alia, that diversity existed on September 2, 2004 when the complaint was filed because at that time Narendra was not a member of ConnectU. Eight days later on June 20, 2006, the Defendants filed a Motion to Strike Plaintiffs Supplemental Declarations of Divya Narendra, Tyler and Cameron Winklevoss in Support of Plaintiffs Supplemental Brief (# 191), a Memorandum in Opposition to the Motion for Leave to File Plaintiffs Supplemental Brief (# 192), as well as affidavits and exhibits (# 193 and Exh. 1, # 194 and Exh. A-Q, # 197). On July 7, 2005, ConnectU filed an Opposition to Facebook Defendant’s (sic) Motion to Strike (# 201) along with a declaration and exhibits (# 202 and Exh. 1-4). The evidentiary hearing was held as scheduled on June 22, 2006. During the course of the hearing the parties stipulated to the fact that Narendra was a citizen of the state of New York. (# 219 at 12) Consequently, the bulk of the hearing was devoted to the citizenship of Zuckerberg. At the conclusion of the hearing after the question of Zuckerberg’s citizenship was taken under advisement, the Plaintiff made an offer of proof regarding Narendra’s membership in ConnectU on the date the complaint was filed. (# 221 at 1-224 to I-226) The Defendants responded by arguing first that, as a result of the integration clause in ConnectU’s operating agreement, the parol evidence rule barred consideration of any oral agreement among Naren-dra, Tyler Winklevoss and Cameron Wink-levoss; second, that Narendra is judicially estopped from claiming that he is not a member of ConnectU in light of his previous sworn testimony; and third, that because ConnectU was not registered to do business in Massachusetts it cannot maintain an action in the Commonwealth and, further, because the limited liability company no longer exists since it was merged into ConnectU, Inc., the failure to register cannot be cured. (# 221 at 1-226 to 1-234) A briefing schedule on these three issues was set. (# 221 at 1-234 to 1-235) On July 13, 2006, the Plaintiff filed a memorandum of law (# 212) on the trio of legal issues raised at the evidentiary hearing together with a declaration and exhibits. (# 213 and Exh. 1-9) The Defendants submitted their objection to the Plaintiffs memorandum (# 225) and a declaration with exhibits (#226 and Exh. A-Y) on July 27, 2006. At that juncture, the record on the issue of the citizenship of Narendra and Zuckerberg was complete. B. Issues In The Second Memorandum (#230) After considering all of the evidence presented, the Court found that Zuckerberg was a citizen of the state of New York on September 2, 2004. Having reached that conclusion, the three legal issues raised at the end of the evidentiary hearing became relevant because if Narendra was a member of ConnectU on the date this lawsuit was filed, there was no diversity of citizenship and the action must be dismissed. In the Second Memorandum and Procedural Order (# 230), the Court ruled on the first two of those issues and pretermitted the third. i. Parol Evidence Rule The Defendants take the position that pursuant to the terms of ConnectU’s Operating Agreement which was signed on August 5, 2005, Narendra was a member of ConnectU effective April 6, 2004. Since the Operating Agreement is a fully integrated contract, the argument runs that the parol evidence rule forecloses Connec-tU from offering evidence of any prior oral agreements to alter the terms of the written agreement. The issue to be decided is whether Nar-endra was a member of ConnectU on September 2, 2004, the date the complaint was filed. When considering this question, the “time-of-filing rule” controls, not the language of a later executed contract. In other words, the subsequent action of the parties cannot alter the state of the facts as they actually existed on the pertinent date. The bottom line is that the parol evidence rule does not apply in the circumstances at hand. Based on the evidence proffered by the parties in their various filings, there undeniably was a dispute of fact as to whether Narendra was a member of ConnectU on September 2, 2004. ii. Judicial Estoppel The Defendants contend that the Plaintiff is estopped from now claiming that Narendra was not a member of Con-nectU on September 2, 2004. The circumstances in which the doctrine of judicial estoppel will be applied have been detailed at some length: In order for judicial estoppel to be applicable, it is “widely recognized” that “at a minimum, two conditions must be satisfied.” Synopsys, 374 F.3d at 33. Initially, the previously asserted position or estopping position, and the presently asserted position or estopped position, must be “mutually exclusive” and “clearly inconsistent.” Synopsys, 374 F.3d at 33; New Hampshire v. Maine, 532 U.S. 742, 750, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001). Second, the party to be es-topped, in this instance the United States, must “have succeeded in persuading a court to accept its prior position.” Synopsys, 374 F.3d at 33 (citing Lydon v. Boston Sand & Gravel, Co., 175 F.3d 6, 13 (1 Cir., 1999)); Gens v. RTC, 112 F.3d 569, 572 (1 Cir.), cert, denied, 522 U.S. 931, 118 S.Ct. 335, 139 L.Ed.2d 260 (1997). Together these two conditions give the impression that either the “first court has been misled or the second court will be misled, thus raising the specter of inconsistent determinations and endangering the integrity of the judicial process.” Synopsys, 374 F.3d at 33 (citing New Hampshire, 532 U.S. at 750-51, 121 S.Ct. 1808, 149 L.Ed.2d 968). Another consideration weighed by courts, albeit “not a formal element of a claim of judicial estoppel,” is whether the party asserting the alleged inconsistent position would gain an unfair advantage. Synopsys, 374 F.3d at 33. This element, however, is not a “sine qua non to the applicability of judicial estoppel” for it is the court’s acceptance of the argument, “not the benefit flowing from the acceptance, that primarily implicates judicial integrity.” Synopsys, 374 F.3d at 33. In sum, it can generally be stated that in the situation where “ ‘a party has adopted one position, secured a favorable decision, and then taken a contradictory position in search of legal advantage’ ” the doctrine of judicial estoppel may be invoked. Synopsys, 374 F.3d at 33 (quoting InterGen v. Grina, 344 F.3d 134,144 (1 Cir., 2003)). Fieldwork Boston, Inc. v. U.S., 344 F.Supp.2d 257, 267 (D.Mass., 2004). To support their position, the Defendants point to the following evidence. In the first amended complaint, Naren-dra is described as a founder of ConnectU who began to develop a business plan for a new website in December, 2002. (# 13 ¶¶ 11, 12) The founders wanted to launch this new website before they graduated from Harvard in June of 2004. (# 13 ¶ 13) In August, 2005, TheFacebook, Inc. filed suit in the state court of California against ConnectU LLC, Cameron Winklevoss, Tyler Winklevoss, Howard Winklevoss, Divya Narendra, and Does 1-25 alleging violation of California Penal Code § 502(c) and common law misappropriation/unfair competition. (# 226, Exh. A) In response, the individual defendants filed a motion to quash service of complaint and summons for lack of personal jurisdiction. (# 226, Exh. B ) In that motion it was argued that the “Individual Defendants have no contact with California” (# 226, Exh. A at 2) and “[i]n addition, the only connection the Individual Defendants have to the alleged acts in this case is as members of Defendant ConnectU LLC.” (#226, Exh. A at 2-3) The parties undertook discovery on the question of personal jurisdiction. (#226 ¶ 5) As part of the process, TheFacebook, Inc. propounded a set of special interrogatories to the individual defendants, including interrogatory no. 14. (#226, Exh. D) The interrogatory is as follows: INTERROGATORY NO. 14: IDENTIFY current AND former directors, officers, employees, AND agents of CONNECTU (including without limitation, Members, Managers, AND Board of Managers as defined in the Limited Liability Company Operating Agreement of ConnectU, LLC— bates numbers C011285 through 011335), HARVARDCONNECTION, AND WINKLEVOSS COMPANIES, including without limitation, dates in these positions, duties, job descriptions, authorities, AND responsibilities. # 226, Exh. D. The individual defendants initially responded by objecting and proffering no substantive answers. (# 226, Exh. E) The-Facebook, Ine. then filed a motion to compel supplemental responses (#226, Exh. F) which was allowed. Thereafter, the response to Interrogatory 14 was supplemented to include the following: Members of ConnectU include Cameron Winklevoss, Tyler Winklevoss, Howard Winklevoss, and Divya Narendra, as set forth in the Limited Liability Company Operating Agreement recited in the Interrogatory (“Operating Agreement”) and found at bates numbers C011285 through C011835. These persons have all been Members since ConnectU was formed. # 226, Exh. H. TheFacebook, Inc. also filed certain form interrogatories (#226, Exh. L) to which the Court also compelled answers. (#226, Exh. G) In the supplemental responses and declarations it was represented that “[substantially most if not all of these downloads [from the facebook.com] occurred prior to the end of July, 2004” (# 226, Exh. P) and that the actions were taken “on behalf of ConnectU.” (# 226, Exh. M) In a declaration filed on June 12, 2006 in the present case, Narendra stated, inter alia, that 1. On and prior to September 2, 2004, the oral agreement between the Harvard Connection founders, Tyler and Cameron Winklevoss, and I, was that only Cameron and Tyler were Members of ConnectU LLC. Hs % ijc ‡ ifc % 3. Because our respective roles, contributions, and shares in the company were uncertain, I was not made a Member of ConnectU LLC until well after September 2, 2004. Declaration of Divya Narendra # 184. Narendra was questioned at his June 16, 2006 deposition about the inconsistency between his interrogatory answers in the California case and the recently filed declaration in the present case: Q. Responding to 14 you say the members of ConnectU include Cameron Winklevoss, Tyler Winklevoss, Howard Winklevoss and Divya Narendra, correct? A. Correct. Q. And then you say those persons have all been members since ConnectU was formed? A. That’s what it says, yes. Can I just clarify something, though? * * * % * * Q. When you signed your interrogatory response, amended interrogatory response on March 9th, 2006 under penalty of perjury, did you consider your answer to be accurate? A. Yes. Q. And when you say they had, these persons have all been members since ConnectU was formed, do you agree that conflicts with your statement that only Cameron and Tyler were members of ConnectU LLC prior to September 2nd, 2004 in your declaration? A. I think this actually may be misstated. What I’m referring to here is the operating agreement. That— MS. ESQUENET: Let the record reflect that by “here” the witness is referring to the response to interrogatory number 14. A. Right, so in interrogatory response number 14 when I say, or when it says that these persons have all been members since ConnectU was formed, I’m referring to the date as of this Limited Liability Company Operating Agreement in the sentence before. Q. You agree you don’t say that in the interrogatory response? * * * * * * A. I didn’t say that. I see how that could be misconstrued, but that’s what I’m referring to is this operating agreement. # 213, Exh. 7. In their brief in support of their motion to quash, the individual defendants argued that: [T]his Court lacks jurisdiction over the Individual Defendants because (a) they have few if any contacts with the forum, (b) they have not availed themselves of the benefit of the forum in any way, purposefully or otherwise, and (c) the Plaintiffs claims do not arise out of any personal contacts between the Individual Defendants and the forum (nor can Plaintiff plead otherwise). # 226, Exh. B at 4. They further asserted that “[t]o the extent the Individual Defendants have any contacts with California, it is as a result of their being members of ConnectU LLC” and “[t] he Individual Defendants did not take any acts regarding Plaintiff outside their positions as members of an LLC, and Plaintiff has no evidence that they did.” (# 226, Exh. B at 6) On June 1, 2006, the individual defendants’ motion to quash was allowed with the Court writing “The Motion of Defendants CAMERON WINK-LEVOSS, TYLER WINKLEVOSS, HOWARD WINKLEVOSS, and DIVYA NARENDRA to Quash Service of Complaint and Summons for Lack of Personal Jurisdiction is granted.” (#226, Exh. C) Because Cameron Winklevoss, Tyler Winklevoss, Howard Winklevoss, and Nar-endra argued in the alternative in support of their motion to quash, i.e., basically that they had little or no contact with the forum or, if they did, it was only in a representative capacity on behalf of ConnectU, and the California judge provided no reasoning for his decision, it is impossible to say that the conditions for application of the doctrine of judicial estoppel have been met. For example, if the judge found that Nar-endra individually had had insufficient contact with California to support personal jurisdiction there, that finding would not necessarily be inconsistent with finding that Narendra was not a member of Con-nectU on September 2, 2004. Moreover, it remains unknown upon which ground the Court relied in making the ruling. The Defendants’ protestations notwithstanding, it cannot be assumed that the judge concluded that although Narendra had sufficient contacts with California, those contacts were only on behalf of ConnectU so jurisdiction could not be exercised over Narendra personally. Further, in light of Narendra’s deposition testimony explaining the seeming inconsistency between the interrogatory answers and his declaration, it could not be stated that the testimony was completely contradictory. What it really came down to at that point was a question of credibility, and that was best addressed in the context of an evidentiary hearing. Just such a hearing was scheduled for September 26, 2006, and then reset to October 24, 2006, at the parties’ request. III. Discussion As is becoming all too familiar in this case, the October 24th evidentiary hearing raised even more questions that needed to be resolved in order make an informed recommendation regarding the disposition of the motion to dismiss. The Court requested that the parties brief two questions of law without reference or citation to the evidence: 1. Does Delaware law control for purposes of deciding whether Narendra was a member of ConnectU LLC with respect to federal diversity? 2. As a matter of Delaware law, is Nar-endra deemed a member of ConnectU LLC as of September 2, 2004 because of the retroactivity provision of the later executed Operating Agreement? # 263 at II — 107—II—114. The parties appear to agree on the answer to the threshold inquiry: It is the state law of Delaware that is applied to determine the constituent members of the limited liability company, ConnectU LLC, on the date the complaint in this case was filed, September 2, 2004, in order to determine whether diversity existed. See, # 255 at 4 (“To apply the rule properly, the Court must step back in time to September 2, 2004 and apply the Delaware law for determining membership.”); #266 at 4 (“The law is well-settled that courts must look to the law of the state where a fictitious entity was established to determine membership/partnership for purposes of diversity jurisdiction.”); # 265 at 2 (“Because an LLC is an artificial entity created by state law, its status and characteristics, including its membership on a particular date, can only be defined by the law of the state which created the LLC.”). The thornier issue upon which the parties disagree is whether a provision of Delaware law that permits retroactivity can affect whether federal diversity jurisdiction existed at the time of the filing of the complaint. Initially, a basic principle warrants repetition, to wit, the rule that diversity is determined at the time of the filing of the complaint. Grupo, 541 U.S. at 570-571, 124 S.Ct. 1920. If diversity is found to have existed at the time of filing, “such jurisdiction may not be divested by subsequent events.” Freeport-McMoRan, Inc. v. KN Energy, Inc., 498 U.S. 426, 428, 111 S.Ct. 858, 112 L.Ed.2d 951 (1991) (citations omitted). Conversely, A corollary of the general rule that diversity is determined as of commencement is that if diversity of citizenship did not exist when the action was commenced, it cannot be created by a later change of domicile or some other event. This rule seems sound and consistent with the brightline policy of determining diversity as of the date of commencement of the action. 13B Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3608 at 458-459 (footnotes omitted). Exceptions to the general rule are extremely limited as, for example, the ability of a court to dismiss a nondiverse, dispensable party in order to cure a jurisdictional defect. See, e.g., Grupo, 541 U.S. at 572, 124 S.Ct. 1920; Newman-Green, 490 U.S. at 832, 109 S.Ct. 2218. Indeed, the Supreme Court recently wrote that: To our knowledge, the Court has never approved a deviation from the rule articulated by Chief Justice Marshall in 1829 that “[w]here there is no change of party, a jurisdiction depending on the condition of the party is governed by that condition, as it was at the commencement of the suit.” Conolly [v. Taylor], [27 U.S.] 2 Pet. [556] at 556 [ (1829) ], 7 L.Ed. 518 (emphasis added). Unless the Court is to manufacture a brand-new exception to the time-of-filing rule, dismissal for lack of subject-matter jurisdiction is the only option available in this case. The purported cure arose not from a change in the parties to the action, but from a change in the citizenship of a continuing party. Withdrawal of the Mexican partners from Atlas did not change the fact that Atlas, the single artificial entity created under Texas law, remained a party to the action. True, the composition of the partnership, and consequently its citizenship, changed. But allowing a citizenship change to cure the jurisdictional defect that existed at the time of filing would contravene the principle articulated by Chief Justice Marshall in Conolly.1[] We decline to do today what the Court has refused to do for the past 175 years. Grupo, 541 U.S. at 574-575,124 S.Ct. 1920. The Plaintiff argues that in undertaking the diversity analysis, the time-of-filing rule means that the facts as they existed on the date that the action was commenced must be examined in light of applicable state law, in this instance, Delaware law. This is a correct articulation of the law. The Defendants, on the other hand, contend that the existence of diversity is determined by looking to Delaware law, and under Delaware law: (d) A limited liability company agreement may be entered into either before, after or at the time of the filing of a certificate of formation and, whether entered into before, after or at the time of such filing, may be made effective as of the formation of the limited liability company or at such other time or date as provided in the limited liability company agreement. 6 Del.Code Ann. § 18 — 201(d) (emphasis added). The LLC Operating Agreement in the instant case, although executed in August, 2005, provided that Narendra was a founding member as of the date of ConnectU’s formation, i.e., April 6, 2004. Thus, according to the Defendants, because Delaware law would enforce the retroactive provision in the LLC Operating Agreement, Narendra must be deemed to have been a member on the date the complaint was filed in September, 2004. The Defendants’ position is contrary to the decision in Grupo that absent a later change in party (and ConnectU as the plaintiff entity has not changed), a subsequent alteration in the membership of the party entity does not impact whether diversity existed on the date of filing. Moreover, the cases upon which they rely do not aid their cause. For example, in Carbine v. Xalapa Farm Limited Partnership, 980 F.Supp. 860 (E.D.La., 1997), while it is true that the court turned to an examination of state law and the terms of the partnership agreement in order to determine whether the plaintiff was a limited partner and, consequently, whether diversity jurisdiction existed, there was no issue with respect to retroactivity since all of the relevant events pre-dated the filing of the complaint. Carbine, 980 F.Supp. at 863. In Kier Brothers Investments Inc. v. White, 943 F.Supp. 1 (D.D.C., 1996), the defendants, both of whom were residents of Maryland, contested diversity claiming “that at the time the complaint was filed, the plaintiff [North Carolina] limited partnership was a citizen of Maryland because one of its limited partners ... was a Maryland citizen.” Kier, 943 F.Supp. at 2. In response the plaintiff asserted that the limited partner in question, one Alfred Bernstein, had transferred by assignment his interest in the limited partnership more than one year prior to the filing of the complaint and so was no longer a limited partner. Kier, 943 F.Supp. at 2. To decide whether Bernstein was a limited partner at the time the complaint was filed, the court analyzed the effect of an assignment of a limited partnership interest under the applicable state law and the provisions of the limited partnership agreement. Kier, 943 F.Supp. at 3-4. Once again, there was no issue of retroac-tivity; the focus was on the facts as they existed on the date that the action was commenced. Kier, 943 F.Supp. at 4 (“For purposes of diversity, plaintiff is considered a citizen of Maryland because one of its limited partners, Mr. Bernstein, was a citizen of Maryland at the time the complaint was fíled in this action on May 3, 1993.” (emphasis added)). The issue in Schiavone Construction Co. v. City of New York, 99 F.3d 546 (2 Cir., 1996) was whether a company’s legitimate assignment of its interest in a joint venture construction project eliminates that company’s citizenship from consideration in determining whether diversity jurisdiction exists in a later suit by the joint venture for sums allegedly owed for work on the project. Schiavone, 99 F.3d at 547. To resolve the question of whether Dai-done Electric of New York (“Daidone”), an entity incorporated in New York with a principal place of business in New York, was a member of the joint venture when the complaint was filed even though it had earlier assigned its interest in the joint venture to Schiavone, the Second Circuit turned to New York state law. Schiavone, 99 F.3d at 548. Because New York law recognizes choice of law provisions in contracts and the parties had agreed in their joint venture agreement that New Jersey law would control, New Jersey law was found to be applicable to the issue. Schiavone, 99 F.3d at 548. Under the state law of New Jersey, the joint venture “continue[d] to exist with respect to all pre-exist-ing matters until they have been wound up.” Schiavone, 99 F.3d at 549. Because the law suit at issue was to collect a debt owed to the joint venture, without doubt it was related to a “pre-existing matter.” Schiavone, 99 F.3d at 549-550. Consequently Daidone was deemed to be a member of the joint venture thereby defeating diversity jurisdiction. Schiavone, 99 F.3d at 550. Again, while state law and the provisions of the joint venture agreement were considered by the court, there was no issue of retroactivity; the focus was solely on the law applicable to the facts as they existed on the date the action was commenced. The Defendants place primary emphasis on the case of 611, LLC v. U.S. Lubes, LLC, 2006 WL 2038615 (D.Md., Jul.18, 2006) as being persuasive authority in support of their position. The case presented on a motion to remand with the plaintiffs 611 LLC (“611”) and American First Management, Inc. (“American First”) arguing that the action had been improperly removed from state court because complete diversity among the parties was lacking. 611, LLC, 2006 WL 2038615,* 1. Both plaintiffs were citizens of Maryland. 611, LLC, 2006 WL 2038615,* 1. The question to be decided was whether either plaintiff was a member of the defendant limited liability company, U.S. Lubes, LLC (“U.S. Lubes”) “for diversity purposes.” 611, LLC, 2006 WL 2038615,* 1. Because U.S. Lubes was a Delaware limited liability company, its membership was to be determined according to the terms of its Operating Agreement and Delaware law. 611, LLC, 2006 WL 2038615, *2. In analyzing the issue, the court examined what effect the conveyance by American First of its interest in U.S. Lubes to 611 had under the terms of the U.S. Lubes Operating Agreement. 611, LLC, 2006 WL 2038615, *2-4. If, as a result of the conveyance, 611 was an As-signee, it would not have been a member of the LLC and its citizenship would not be considered in deciding diversity. 611, LLC, 2006 WL 2038615, *2-4. If, however, 611 had become a Substitute Member consequent to the conveyance, its citizenship would be relevant. 611, LLC, 2006 WL 2038615, *2-4. Finding the terms of the Operating Agreement to be ambiguous, the court considered other factual evidence that bore on the question of 611’s status, i.e., the manner in which U.S. Lubes treated 611. 611, LLC, 2006 WL 2038615, *2-5. The upshot was the court’s conclusion that In light of the Agreement’s ambiguities and the parties’ conduct, the plaintiffs had reasonable grounds for believing then, and claiming now, that 611 satisfied the requirements for becoming a Substitute Member of U.S. Lubes. 611, LLC, 2006 WL 2038615,*6. Because 611 was both the plaintiff and a member of the defendant LLC such that its citizenship was to be considered for diversity purposes, the motion to remand was allowed for lack of jurisdiction. 611, LLC, 2006 WL 2038615, *6. As in the other cases cited by the Defendants, while the court certainly considered the terms of the Operating Agreement in deciding who constituted the members of the LLC in the 611, LLC case, again no issue of retroactivity was raised in the diversity analysis. In fact, defendant Saverin concedes that “no court has addressed the precise issue of whether a retroactive LLC operating agreement given effect under state law is determinative for purposes of establishing members of the LLC at the time of filing.” (# 265 at 12) None of the cases upon which the Defendants rely persuade the Court that the retroactivity provision in Delaware LLC law trumps the long-standing federal policy. To apply the retroactive provision in the ConnectU LLC Operating Agreement, a provision admittedly enforceable under Delaware law, would be to permit a subsequent event to dictate diversity. This is not the rule, nor is it a recognized exception to the rule. Indeed, following the Defendants’ reasoning, if the diversity issue had been completely adjudicated prior to August 5, 2005, the date that the Operating Agreement was executed, the decision as to whether Narendra was a member of the LLC on the date that the complaint was filed (and thus whether diversity existed on September 2, 2004) potentially could have been different than when the decision is being made post August 5, 2005. Accepting the Defendants’ argument would foster precisely the type of litigation and uncertainty that the time-of-filing rule seeks to avoid. See Grupo, 541 U.S. at 582, 124 S.Ct. 1920 (“We decline to endorse a new exception to a time-of-filing rule that has a pedigree of almost two centuries. Uncertainty regarding the question of jurisdiction is particularly undesirable, and collateral litigation on the point particularly wasteful. The stability provided by our time-tested rule weighs heavily against the approval of any new deviation.”) In sum, to decide the diversity question, the Court must look at the September 2, 2004 snapshot and, based on the facts as they existed that day, determine under Delaware law who were then the constituent members of ConnectU LLC. The issue as thus limned places this case in a somewhat unique posture. Under Delaware law, the retroactive provision of the Operating Agreement executed after the complaint in this case was filed would be recognized and enforced such that Nar-endra, along with Cameron, Tyler and Howard Winklevoss, would be deemed to have been members of ConnectU as of April 6, 2004. In the context of the diversity analysis, however, this retroactive provision does not carry the day. Rather, the provisions of the Delaware Limited Liability Company Act must be examined in order to determine which individual(s), if any, were members of ConnectU on September 2, 2004. Starting with the basics, Delaware law provides that (11) “Member” means a person who has been admitted to a limited liability company as a member as provided in § 18-301 of this title or, in the case of a foreign limited liability company, in accordance with the laws of the state or foreign country or other foreign jurisdiction under which the foreign limited liability company is organized. 6 Del.Code Ann. § 18-101(11). The referenced section, 6 Del.Code Ann. § 18-301, distinguishes between the admission of members before or at the time of the formation of a limited liability company and the admission of members after the limited liability company has been formed. Each subsection shall be addressed in turn. First, (a) In connection with the formation of a limited liability company, a person is admitted as a member of the limited liability company upon the later to occur of: (1) The formation of the limited liability company; or (2) The time provided in and upon compliance with the limited liability company agreement or, if the limited liability company agreement does not so provide, when the person’s admission is reflected in the records of the limited liability company. 6 Del.Code Ann. § 18-301(a). With respect to subsection (a), the documentary evidence makes clear, and the parties do not appear to dispute, that no one became a member at the formation of the LLC. The Certificate of Formation for ConnectU sets forth only the name of the LLC together with the address of its registered office in Delaware and the name of its registered agent at that address, to wit, The Company Corporation. This is perfectly acceptable under Delaware law and does not in any manner implicate the validity of the LLC. See 6 DeLCode Ann. § 18-102(2) (“The name of each limited liability company as set forth in its certificate of formation: ... [and] (2) May contain the name of a member or manager.” (emphasis added); see also 6 DeLCode Ann. § 18-201(a); In re Grupo Dos Chi les, LLC, 2006 WL 668443, *3 (Del.Ch., Mar.10, 2006)). Turning to subsection (a)(2), Narendra and the three Winklevosses were admitted as members effective April 6, 2004, in accordance with the Operating Agreement. Nevertheless, since the Operating Agreement was executed subsequent to the filing of the complaint, the time provided in its terms, i.e., April 6, 2004, cannot control the diversity analysis as previously discussed. Moreover, no ConnectU records reflecting the admission of any members to the LLC prior to September 2, 2004, have been proffered by the parties. In sum, for purposes of diversity, under Delaware law there were no members of ConnectU before or at the time of the formation of the LLC. In its post-hearing brief ConnectU queries: “Assuming that ANY Members were admitted at ConnectU LLC’s formation, who got to decide who they would be?” (#255 at 8, emphasis in original) The Plaintiff then engages in a somewhat tortured analysis to reach the conclusion that whoever were among the various possible decision makers, “the relevant people agree that Divya Narendra was not a Member at formation.” (# 255 at 9) There is no need to engage in such circumlocution; there simply is no requirement under Delaware law that there be members of an LLC at formation and, for purposes of the diversity discussion, there were none. Moving on, with respect to membership subsequent to the formation of an LLC, subsection (b)(1) of 6 DeLCode Ann. § 18-301 is applicable. That provision basically delineates two sets of circumstances in which a person may become a member after the formation of an LLC, either “at the time provided in and upon compliance with the limited liability company agreement” or “upon the consent of all members and when the person’s admission is reflected in the records of the limited liability company.” 6 DeLCode Ann. § 18-301(b)(1). Once again, the time provided in the Operating Agreement is not decisive in the context of the diversity calculus. Since there were no members of ConnectU at the formation, there were no members to consent to Narendra’s membership on or before September 2, 2004, and there are no LLC records reflecting his admission on or before that time. The bottom line is that pursuant to Delaware law for diversity purposes there were no members of ConnectU on the date the complaint was filed. For their part, the Defendants posit that: The threshold inquiry for the Court is “what is a member” for purposes of the LLC Act? Remarkably few courts have addressed this question. The definition of “member” set forth in DeLCode Ann. § 18-101(11), which simply describes a member as someone admitted as provided by DeLCode Ann. § 18-301, also provides little guidance. Facebook’s Supplemental Opposition # 271 at 3. To the contrary, as detailed above, the Court finds the relevant provisions of Delaware law to be plain and straightforward. That the result of applying those provisions might be unexpected is a consequence of the anomalous analysis which must be undertaken in order to determine diversity on September 2, 2004. In any event, the Defendants argue that the Court should consider a wide array of factors in order to decide the membership of ConnectU on the date the complaint was filed. The cases upon which the Defendants’ rely are inapposite given the facts and circumstances at hand. At the outset, the Defendants contend that The [Delaware Limited Liability Company] Act can be characterized as a “flexible statute” because it generally permits members to engage in private ordering with substantial freedom of contract to govern their relationship, provided they do not contravene any mandatory provisions of the Act. Indeed, the LLC has been characterized as the “best of both worlds.” Elf Atochem North America, Inc. v. Jaffari, 727 A.2d 286, 290 (Del.Supr., 1999) (footnotes omitted). In the Elf case, the plaintiff and another individual, Cyrus A. Jaffari, and his company, Malek, Inc., decided to undertake a joint venture in the form of an LLC to market a maskant to the aerospace industry. Elf, 727 A.2d at 287-288. A Certificate of Formation in Delaware to form Malek LLC was filed, and thereafter the parties entered into certain agreements with respect to the operation of the LLC, one of which the court considered to be the Operating Agreement. Elf, 727 A.2d at 288. Provisions of that Operating Agreement included an arbitration clause which was to cover all disputes as well as a forum selection clause. Elf, 727 A.2d at 288. Elf ultimately sued Jaffari and Malek, Inc. both individually and derivatively on behalf of Malek LLC for breach of fiduciary duty, breach of contract, and so on, after Jaffari allegedly took money from Malek LLC for his own purposes. Elf, 727 A.2d at 289. The lower court dismissed the case in light of the arbitration clause and Elf appealed. Elf, 727 A.2d at 289. After summarizing the background of the Delaware Limited Liability Company Act, the Delaware Supreme Court observed that The basic approach of the Delaware Act is to provide members with broad discretion in drafting the Agreement and to furnish default provisions when the members’ agreement is silent. The Act is replete with fundamental provisions made subject to modification in the Agreement (e. g. “unless otherwise provided in a limited liability company agreement....”). Elf, 727 A.2d at 291 (footnotes omitted). The Court noted that it is the Operating Agreement that is of primary importance and will be enforced unless “inconsistent with mandatory statutory provisions.” Elf, 727 A.2d at 292. It was determined that since the members of the LLC had signed the Operating Agreement, the arbitration and forum selection clauses would be enforced even though Malek LLC was not a signatory to the Operating Agreement. Elf, 727 A.2d at 293. Further, the Delaware Supreme Court ruled that, by contract, members of an LLC could alter the default jurisdiction provisions of the Delaware Act. Elf 727 A.2d at 295. The Court in this case acknowledges that the Delaware Limited Liability Company Act should be construed flexibly and that the members of LLCs are afforded broad powers to fix contractually the terms and conditions of their relationship. The issue to be decided at this point does not, however, involve the Operating Agreement or the breadth of the parties’ right to contract. The pertinent issue in the In re Grupo Dos Chiles, LLC case was whether the membership of the LLC could be altered without an amendment to the Certificate of Formation. In re Grupo Dos Chiles, LLC, 2006 WL 668443, *2. In February, 2000, a certificate of formation for the Grupo Dos Chiles, LLC (“Grupo”) was filed in Delaware naming Jamie Rivera as the “initial member.” In re Grupo Dos Chiles, LLC, 2006 WL 668443, *1. The following month, Alfred Shriver and Yolanda Martinez who then enjoyed a personal relationship, signed an LLC Agreement with respect to Grupo in which they were named “managing partners.” In re Grupo Dos Chiles, LLC, 2006 WL 668443, *1. In June of 2003 Grupo failed to pay Delaware taxes and so lost its good standing in the state. In re Grupo Dos Chiles, LLC, 2006 WL 668443, *1. In December, 2004, Shriver commenced an action in Virginia to wind up the affairs of the LLC since the LLC had been dissolved by operation of law in Delaware and he and Martinez “were at an impasse.” In re Grupo Dos Chiles, LLC, 2006 WL 668443, *1. The following month, Martinez, on her own, paid the back taxes for Grupo and so returned the LLC to good standing. In re Grupo Dos Chiles, LLC, 2006 WL 668443, *1. This act by Martinez caused Shriver to sue. Before discussing the issues raised, the court noted that Both sides to this dispute have put too much emphasis on formalities. The Court considers the underlying facts and course of dealing among the parties at least equally important. Thus, the Court will examine the arguments based on the formalities in light of the facts and evidence of the parties’ intentions. In re Grupo Dos Chiles, LLC, 2006 WL 668443, *2. The court concluded that it did not matter that the certificate of formation named only Rivera as a member of the LLC because “the Agreement, entered into in March 2000, makes it clear that Shriver and Martinez are the members [and][t]he Agreement superceded the CoF.” In re Grupo Dos Chiles, LLC, 2006 WL 668443, *2. The fact that Shriver and Martinez were named “Managing Partners” in the Agreement rather than “members” was deemed to be semantics and insignificant. In re Grupo Dos Chiles, LLC, 2006 WL 668443, *3. The court relied on documentary evidence to underscore the parties’ intent that Shriver and Martinez were members of the LLC. In re Grupo Dos Chiles, LLC, 2006 WL 668443, *3. In the In re Grupo Dos Chiles, LLC case the court was addressing an ambiguity in the language of the parties’ LLC agreement and, in doing so, considered extrinsic evidence. The case at bar involves a straightforward application of the provisions of the statute for which there is no need to consider the parties’ course of conduct or other such evidence. As discussed earlier, the court in 611, LLC, 2006 WL 2038615, had to determine whether diversity in the federal court existed following removal from the state court. In particular, the question raised was whether either of the two plaintiffs, 611, LLC or American First Management, Inc., “qualifiefd] as a ‘member’ of [defendant] U.S. Lubes for diversity purposes”, an “inquiry requiring] close factual and textual analysis ... [with] not much relevant case law.” 611, LLC, 2006 WL 2038615, *1-2. The analysis involved a dissection of the U.S. Lubes, LLC Operating Agreement in order to determine whether 611, LLC, after American First Management, Inc. conveyed its interest in U.S. Lubes to 661, LLC, was an Assignee or a Substitute Member of U.S. Lubes, LLC. 611, LLC, 2006 WL 2038615, *2-3. After reviewing all of the evidence the court concluded that: In light of the Agreement’s ambiguities and the parties’ conduct, the plaintiffs had reasonable grounds for believing then, and claiming now, that 611 satisfied the requirements for becoming a Substitute Member of U.S. Lubes. Although 611 could have, sought formal confirmation of this proposition, U.S. Lubes acted in a manner consistent with 611’s perceived status as a member until this litigation commenced. 611, LLC, 2006 WL 2038615, *5-6. While the 611, LLC decision certainly stands for the proposition that it is permissible to consider extrinsic evidence when construing an ambiguous agreement, the terms of the Operating Agreement are not at issue in the diversity analysis in the present case. In the case of Matthews v. D’Amore, 2006 WL 3095817 (Ohio App. 10 Dist., Nov.2, 2006) upon which the Defendants rely (and cited with approval by ConnectU, see # 275 at 2-8), the court examined Ohio law in order to resolve a dispute over membership in an LLC. In particular, the court noted that: Limited liability companies are governed by R.C. Chapter 1705. R.C. 1705.01(G) provides that a “member” of a limited liability company is “a person whose name appears on the records of the limited liability company as the owner of a membership interest in that company.” “Membership interest” is defined by R.C. 1705.01(H) as “a member’s share of the profits and losses of a limited liability company and the right to receive distributions from that company.” It is well-settled that “[t]he paramount consideration in determining the meaning of a statute is legislative intent.” State v. Jackson, 102 Ohio St.3d 380, 811 N.E.2d 68, 2004-0hio-3206, at ¶ 34, citing State ex rel. Asberry v. Payne (1998), 82 Ohio St.3d 44, 47, 693 N.E.2d 794. To determine such intent, a court must first look at the words of the statute itself. “It is a cardinal rule that a court must first look to the language of the statute itself to determine the legislative intent. If that inquiry reveals that the statute conveys a meaning which is clear, unequivocal and definite, at that point the interpretative effort is at an end, and the statute must be applied accordingly.” Provident Bank v. Wood (1973), 36 Ohio St.2d 101, 105-106, 304 N.E.2d 378, citing Sears v. Weimer (1944), 143 Ohio St. 312, 55 N.E.2d 413. A court must also bear in mind that “[statutes concerning the same subject matter must be construed in pari materia.” In re C. W., 104 Ohio St.3d 163, 818 N.E.2d 1176, 2004-Ohio-6411, at ¶ 7, citing In re Hayes (1997), 79 Ohio St.3d 46, 48, 679 N.E.2d 680. With these principles in mind, we conclude, reading R.C. 1705.01(G) and (H) in pari materia, that to be a “member” of a limited liability company, a person’s name must appear on the company records as one who shares in the company’s profits and losses and has a right to receive distributions from the company. Matthews, 2006 WL 3095817, *8. Applying the terms of the statutes literally, the court found that although the defendants had signed certain Articles of Incorporation and an Original Appointment of Agent form, those documents did not give the defendants the right to share in the profits or losses of, or receive distributions from, the LLC. Matthews, 2006 WL 3095817, *9. Since the defendants failed to meet the statutory prerequisites, it was concluded that they were not members of the LLC. The approach adopted by the Mattheivs court is similar to that employed in this case. The De