Discover Property and Casualty Insurance Company v. CIMCO Refrigeration, Inc. et al

Filing 12

ORDER directing that it is therefore the ORDER, JUDGMENT, and DECREE of the court that the plaintiff has until December 20, 2010, to amend the complaint to allege jurisdiction sufficiently, as further set out. Signed by Honorable Myron H. Thompson on 12/13/10. (scn, )

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IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION DISCOVER PROPERTY AND ) CASUALTY INSURANCE COMPANY, ) ) Plaintiff, ) ) v. ) ) CIMCO REFRIGERATION, INC., ) and LARRY BURDETTE and ) NANCY VATCA, as Co) Administrators of the ) Estate of Nicholas T. ) Burdette, Deceased, ) ) Defendants. ) ORDER The allegations of the plaintiff's complaint are insufficient to invoke this court's diversity-of- CIVIL ACTION NO. 2:10cv1011-MHT (WO) citizenship jurisdiction. The allegations must show that the citizenship of each plaintiff is different from that of each defendant. The standard. 28 U.S.C. 1332. complaint fails to meet this plaintiff's The plaintiff has sued two of the defendants in their capacities as personal representatives for the estate of a decedent. "[T]he legal representative of the estate of a decedent shall be deemed to be a citizen only of the same State as the decedent ...." 1332(c)(2). citizenship establish 28 U.S.C. Because the complaint does set forth the of the the decedent, for it this does not adequately to assume ground court jurisdiction of this matter. In addition, an allegation that a party is a "resident" of a state is not sufficient to establish that a party is a "citizen" of that state. Delome v. Union Barge Line Co., 444 F.2d 225, 233 (5th Cir.), cert. denied, 404 U.S. 995 (1971). careful to set forth the The plaintiff must be not just the citizenship, residence, of the decedent. It is therefore the ORDER, JUDGMENT, and DECREE of the court that the plaintiff has until December 20, 2010, to amend the complaint to allege jurisdiction sufficiently; otherwise this lawsuit shall be dismissed without prejudice. DONE, this the 13th day of December, 2010. /s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE

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