Saylor v. Boyd, Dist. Court, SD Illinois 2012 – Google Scholar.
This is an old lesson, but one worth remembering. The plaintiff must allege diversity jurisdiction by alleging the citizenship of the plaintiff and the defendant. Residency is not citizenship. This lesson appears again and again in the federal jurisprudence, but some plaintiffs do not seem to learn it.
(“Under the rule of complete diversity, if there are residents of the same state on both sides of a lawsuit, the suit cannot be maintained under the diversity jurisdiction even when there is also a nonresident party.”); Fidelity & Deposit Co. of Md. v. City of Sheboygan Falls, 713 F.2d 1261, 1264 (7th Cir. 1983) (citing Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267 (1806)) (“For a case to be within the diversity jurisdiction of the federal courts, diversity of citizenship must be `complete,’ meaning that no plaintiff may be a citizen of the same state as any defendant.”). The removing defendant, as the proponent of federal subject matter jurisdiction, has the burden of proof as to the existence of such jurisdiction. See Spivey v. Vertrue, Inc., 528 F.3d 982, 986 (7th Cir. 2008); In re Brand Name Prescription Drugs Antitrust Litig., 123 F.3d 599, 607 (7th Cir. 1997); Misiak v. Farmer, Civil No. 10-133-GPM, 2010 WL 685895, at *1 (S.D. Ill. Feb. 23, 2010).
via LOELLKE v. Moore, Dist. Court, SD Illinois 2012 – Google Scholar.
PHILADELPHIA INDEMNITY INSURANCE COMPANY v. YOUR FRIENDS & NEIGHBORS, INC., Dist. Court, ND Indiana 2012 – Google Scholar.
The court found that diversity jurisdiction was lacking because (a) plaintiff alleged residency, not citizenship; and (b) the allegations were made on information and belief.
The court ordered plaintiffs to amend their complaint.
Metheney v. MR. BULT’S INC., Dist. Court, SD Ohio 2012 – Google Scholar.
The court reviewed this case and remanded it to the State Court on the ground that diversity jurisdiction was lacking because the plaintiff and the defendant were both citizens of Ohio.
The lawsuit arose out of a traffic accident. Plaintiff sued the driver (citizen of Ohio) and his employer (corporation not a citizen of Ohio). The court rejected any claim that the defendant driver was fraudulently joined to create diversity jurisdiction.
The district court explained: “In this case, Plaintiffs can pursue claims against both Kirk and MBI within the same action under Ohio law. Plaintiffs can join Kirk and MBI in the same action because the right to relief arises out of the same transaction or occurrence and common questions of law or fact will arise in the action. The same result would occur under Federal Rule of Civil Procedure 20, which applies the same basic test. See, e.g., Wayman v. Accor North Am., Inc., 486 F.Supp.2d 1280, 1285 (D. Kan. 2007) (holding that plaintiff could join a non-diverse employee and his vicariously liable employer in one action because it satisfied the requirements for joinder under Rule 20)). Plaintiffs, therefore, have not fraudulently joined Defendant Kirk in this action.”
Edward X. Clinton, Jr.