Rockhill Insurance Company v. Rogers et al
Order that Plaintiff file an Amended Complaint by 11/13/2017 that corrects the deficiencies set out in order. Signed by Magistrate Judge Katherine P. Nelson on 11/6/17. (srr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SANDRA ROGERS, individually
And as personal representative of
the Estate of Dustin Rogers, and
CRANE INSPECTION SERVICES,
CIVIL ACTION NO. 1:17-00480-N
This action is before the Court sua sponte on review of its subject matter
jurisdiction.1 Plaintiff Rockhill Insurance Company (“the Plaintiff”) initiated this
action by filing a complaint (Doc. 1) with the Court, alleging diversity of citizenship
under 28 U.S.C. § 1332(a) as the sole basis for jurisdiction.
See Fed. R. Civ. P.
8(a)(1) (“A pleading that states a claim for relief must contain a short and plain
statement of the grounds for the court’s jurisdiction…”).2
“It is . . . axiomatic that the inferior federal courts are courts of limited jurisdiction.
They are ‘empowered to hear only those cases within the judicial power of the United
States as defined by Article III of the Constitution,’ and which have been entrusted
to them by a jurisdictional grant authorized by Congress.” Univ. of S. Ala. v. Am.
Tobacco Co., 168 F.3d 405, 409 (11th Cir. 1999) (quoting Taylor v. Appleton, 30 F.3d
1365, 1367 (11th Cir. 1994)). Accordingly, “it is well settled that a federal court is
obligated to inquire into subject matter jurisdiction sua sponte whenever it may be
lacking.” Id. at 410. “[A] court should inquire into whether it has subject matter
jurisdiction at the earliest possible stage in the proceedings.” Id. See also See
Arbaugh v. Y&H Corp., 546 U.S. 500, 514, (2006) (“[C]ourts, including this Court,
have an independent obligation to determine whether subject-matter jurisdiction
exists, even in the absence of a challenge from any party.”).
Though the complaint alleges a claim for declaratory judgment under the federal
Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, “it is well established that the
When a plaintiff files suit in federal court, [the plaintiff] must allege
facts that, if true, show federal subject matter jurisdiction over [the]
case exists. Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994).
Those allegations, when federal jurisdiction is invoked based upon
diversity, must include the citizenship of each party, so that the court is
satisfied that no plaintiff is a citizen of the same state as any
defendant. Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287
(11th Cir. 1998) (“Diversity jurisdiction requires complete diversity;
every plaintiff must be diverse from every defendant.”). Without such
allegations, district courts are constitutionally obligated to dismiss the
action altogether if the plaintiff does not cure the deficiency. Stanley
v. C.I.A., 639 F.2d 1146, 1159 (5th Cir. Unit B Mar. 1981); see also
DiMaio v. Democratic Nat'l Comm., 520 F.3d 1299, 1303 (11th Cir.
2008) (“Where dismissal can be based on lack of subject matter
jurisdiction and failure to state a claim, the court should dismiss on
only the jurisdictional grounds.” (internal quotation marks omitted)).
That is, if a complaint’s factual allegations do not assure the
court it has subject matter jurisdiction, then the court is
without power to do anything in the case. See Goodman ex rel.
Goodman v. Sipos, 259 F.3d 1327, 1331, n.6 (11th Cir. 2001) (“ ‘[A
district] court must dismiss a case without ever reaching the merits if it
concludes that it has no jurisdiction.’ ” (quoting Capitol Leasing Co. v.
FDIC, 999 F.2d 188, 191 (7th Cir. 1993))); see also Belleri v. United
States, 712 F.3d 543, 547 (11th Cir. 2013) (“We may not consider the
merits of [a] complaint unless and until we are assured of our subject
Travaglio v. Am. Exp. Co., 735 F.3d 1266, 1268 (11th Cir. 2013) (emphasis added)
(footnote omitted). See also, e.g., Ray v. Bird & Son & Asset Realization Co., Inc.,
519 F.2d 1081, 1082 (5th Cir. 1975) (“The burden of pleading diversity of citizenship
is upon the party invoking federal jurisdiction . . .” (citing Mas v. Perry, 489 F.2d
Declaratory Judgment Act does not, of itself, confer jurisdiction upon federal courts.”
Stuart Weitzman, LLC v. Microcomputer Res., Inc., 542 F.3d 859, 861–62 (11th Cir.
1396 (5th Cir. 1974)).3
Upon review of the complaint (Doc. 1), the undersigned finds
that the Plaintiff must correct the following deficiencies in its allegations as to the
citizenship of Defendant Sandra Rogers:
With regard to the suit against Sandra Rogers in her individual
capacity, the Plaintiff alleges only that Sandra Rogers “was a resident of
Alabama at all times relevant hereto.”
(Doc. 1 at 1, ¶ 2 (emphasis added)).
The Eleventh Circuit has repeatedly stressed that residence alone does not
establish citizenship for purposes of § 1332(a). See Taylor v. Appleton, 30
F.3d 1365, 1367 (11th Cir. 1994) (“Citizenship, not residence, is the key fact
that must be alleged . . . to establish diversity for a natural person.”
(emphasis added)); Travaglio v. Am. Exp. Co., 735 F.3d 1266, 1269 (11th Cir.
2013) (“As we indicated in remanding this case for jurisdictional findings, the
allegations in Travaglio’s complaint about her citizenship are fatally defective.
Residence alone is not enough.”); Molinos Valle Del Cibao, C. por A. v. Lama,
633 F.3d 1330, 1342 n.12 (11th Cir. 2011) (“Ordinarily, the complaint must
allege the citizenship, not residence, of the natural defendants.”); Beavers v.
A.O. Smith Elec. Prods. Co., 265 F. App’x 772, 778 (11th Cir. 2008) (per
curiam) (unpublished) (“The plaintiffs’ complaint alleges only the residence of
the nearly 100 plaintiffs, not their states of citizenship. Because the plaintiffs
have the burden to affirmatively allege facts demonstrating the existence of
“In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), [the
Eleventh Circuit] adopted as binding precedent all decisions of the former Fifth
Circuit handed down prior to the close of business on September 30, 1981.”
Travaglio, 735 F.3d at 1268 n.1.
jurisdiction and failed to allege the citizenship of the individual plaintiffs, the
district court lacked subject matter jurisdiction on the face of the complaint.”
(internal citation and quotation omitted)); Crist v. Carnival Corp., 410 F.
App’x 197, 200 (11th Cir. 2010) (per curiam) (unpublished) (“The allegation
that Crist is a ‘resident’ of Florida is insufficient for diversity jurisdiction
purposes because residency is not the equivalent of citizenship.” (citing Cong.
of Racial Equal. v. Clemmons, 323 F.2d 54, 58 (5th Cir. 1963) (“Diversity of
citizenship, not of residence, is required under 28 U.S.C.A. § 1332. Wherever
jurisdiction is predicated upon the citizenship (or alienage) of the parties, it
should be noted that since residence is not the equivalent of
citizenship, an allegation that a party is a resident of a certain state
or foreign country is not a sufficient allegation of his citizenship.”
(quotation and citation omitted) (emphasis added))).
“Citizenship is equivalent to ‘domicile’ for purposes of diversity
A person’s domicile is the place of his true, fixed, and
permanent home and principal establishment, and to which he has the
intention of returning whenever he is absent therefrom.”
Aderholt, 293 F.3d 1254, 1257-58 (11th Cir. 2002) (citations, quotations, and
footnote omitted). “And domicile requires both residence in a state and ‘an
intention to remain there indefinitely....’ ”
Travaglio, 735 F.3d at 1269
(quoting McCormick, 293 F.3d at 1258 (internal quotation marks omitted))
(emphasis added). See also Mas, 489 F.2d at 1399 (“For diversity purposes,
citizenship means domicile; mere residence in the State is not sufficient.”).
2. The Plaintiff has also sued Sandra Rogers in her capacity as representative of
the Estate Dustin Rogers, deceased. For purposes of diversity jurisdiction,
he legal representative of the estate of a decedent shall be deemed to be a
citizen only of the same State as the decedent…”
28 U.S.C. § 1332(c)(2).
The Plaintiff has not alleged decedent Dustin Rogers’s state of citizenship.
“Defective allegations of jurisdiction may be amended, upon terms, in the trial
or appellate courts.”
28 U.S.C. § 1653. “[L]eave to amend should be freely granted
when necessary to cure a failure to allege jurisdiction properly.”
Georgiana Cmty. Hosp., Inc., 724 F.2d 901, 903 n.1 (11th Cir. 1984).
consideration, the Plaintiff is ORDERED to file, no later than Monday, November
13, 2017, an amended complaint that corrects the above-noted deficiencies in its
allegations supporting diversity jurisdiction under § 1332(a), or that alleges some
alternative basis for subject matter jurisdiction. In filing the amended complaint,
the Plaintiff must abide by the following directives:
The amended complaint shall reproduce the entire original complaint as
amended, see S.D. Ala. CivLR 15(a) (“Any amendment to a pleading … must
reproduce the entire pleading as amended and may not incorporate any prior
pleading by reference.”), and will become the operative complaint in this
“As a general matter, ‘[a]n amended pleading supersedes the former pleading; the
original pleading is abandoned by the amendment, and is no longer a part of the
pleader's averments against his adversary.’ ” Pintando v. Miami-Dade Hous.
The Plaintiff must file the amended complaint as a freestanding pleading and
not as an exhibit attached to a notice, motion, etc.
Any filing made in contravention of these directives will be deemed
nonresponsive to this Order and will be summarily ordered stricken. Moreover, the
failure to file an amended complaint as ordered may result in dismissal of this action
for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(h)(3)
(“If the court determines at any time that it lacks subject-matter jurisdiction, the
court must dismiss the action.”).
Moreover, the Plaintiff, a corporation, has yet to file a disclosure statement as
required by Federal Rule of Civil Procedure 7.1 (applicable to “nongovernmental
corporate” parties) and S.D. Ala. CivLR 7.1 (applicable to “[a]ll non-governmental
artificial entities appearing as parties”). The Plaintiff is ORDERED to do so no
later than Monday, November 13, 2017.5
DONE and ORDERED this the 6th day of November 2017.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
Agency, 501 F.3d 1241, 1243 (11th Cir. 2007) (per curiam) (quoting Dresdner Bank
AG, Dresdner Bank AG in Hamburg v. M/V OLYMPIA VOYAGER, 463 F.3d 1210,
1215 (11th Cir. 2006) (citation and quotation omitted)). See also, e.g., Fritz v.
Standard Sec. Life Ins. Co. of New York, 676 F.2d 1356, 1358 (11th Cir. 1982)
(“Under the Federal Rules, an amended complaint supersedes the original
Court’s form available at:
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