Kamensky et al

Filing 39

MEMORANDUM Opinion and Order Signed by the Honorable Sharon Johnson Coleman on 5/13/2011:Mailed notice(keg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JERROLD KAMENSKY individually and
as assignee of the Frank Kamensky
Residuary Trust,

Case No. 10-cv-6605
Judge Sharon Johnson Coleman

Plaintiff,
Magistrate Judge Arlander Keys
v.
THE ESTATE OF JOEL A. WEINSTEIN;
WEINSTEIN BROTHERS, INC.;
WEINSTEIN BROTHERS MEMORIAL
CHAPELS; WEINSTEIN BROTHERS
FUNERAL HOME; WEINSTEIN
FAMILY SERVICES, INC.; WEINSTEIN
CHAPELS, INC.; Illinois corporations;
and THE FUNERAL DIRECTORS
SERVICES ASSOCIATION OF
GREATER CHICAGO,
Defendants.

MEMORANDUM OPINION AND ORDER
This matter is before the Court on motion by Defendants Weinstein Brothers, Inc.,
Weinstein Brothers Memorial Chapels, Weinstein Brothers Funeral Home, Weinstein Family
Services, Inc., and Weinstein Chapels, Inc. (collectively, the “moving defendants”) to dismiss
the amended complaint filed by Plaintiff Jerrold Kamensky (“Plaintiff”). The moving
defendants argue, inter alia, that dismissal is proper pursuant to Federal Rules of Civil Procedure
12(b)(1), 12(b)(6), and 9(b). For the reasons that follow, the Court grants the instant motion to
dismiss.

FACTUAL BACKGROUND

Plaintiff filed his second amended complaint on October 25, 2010 asserting claims in ten
counts against the moving defendants, the Estate of Joel A. Weinstein1, and the Funeral Directors
Services Association of Greater Chicago (“FDSA”). (Dkt. No. 3.) Plaintiff alleges that he is the
assignee and owner of all rights, title, interest, and choses of action related to a pre-arranged
funeral agreement (the “Agreement”) that Frank and Faye Kamensky formed with Defendant
Weinstein Brothers, Inc. (“WBI”) in December 1986. (Id. at ¶¶ 4, 14.) Pursuant to the
Agreement, Frank and Faye Kamensky (the “Purchasers”) provided WBI with $4,800.00 that
was to be held in trust until Frank’s death. (Id. at ¶ 15.) The Agreement and the Illinois Funeral
or Burial Funds Act (the “Funeral Act”), 225 ILCS 45/1 et seq., required WBI to annually report
the amount of interest earned on the trust account until the funds were either withdrawn or used
for funeral and burial services. (Id. at ¶¶ 1, 16.)
Plaintiff alleges, upon information and belief, that the moving defendants have merged
into one entity. (Id. at ¶ 8.) These defendants allegedly deposited the Purchasers’ funds with
Defendant FDSA to professionally manage and invest. (Id. at ¶¶ 9-10.) Plaintiff claims that the
moving defendants failed to provide the required annual accounting, provided funeral services
for Faye Kamensky upon her death in November 1993 at full price without regard to the
Agreement, failed to provide funeral services for Frank Kamensky upon his death in August
2009, and violated various provisions of the Funeral Act. (Id. at ¶¶ 16, 19-21.) Based on these
actions, Plaintiff seeks $300,000 in damages in a ten count complaint asserting: two violations
of the Illinois Consumer Fraud and Deceptive Business Practices Act, breach of contract, breach
of fiduciary duty, a claim for an accounting, common law fraud, unjust enrichment, negligent
misrepresentation, promissory estoppel, and conversion. (See generally Am. Compl.) Plaintiff
alleges that federal diversity jurisdiction over these state law claims is proper because the parties
1 The Estate of Joel A. Weinstein has not been served in this action.

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are from different states and the amount in controversy exceeds the sum of $75,000.00 exclusive
of interest and costs. (Id. at ¶ 12.)
LEGAL STANDARD
Federal courts are courts of limited jurisdiction; “they have only the power that is
authorized by Article III of the Constitution and the statutes enacted by Congress pursuant
thereto.” Transit Express, Inc. v. Ettinger, 246 F.3d 1018, 1023 (7th Cir. 2001) (internal
quotations and citations omitted). Congress has provided that “[t]he district courts shall have
original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value
of $75,000 exclusive of interests and costs” and where the action is between “citizens of
different states.” 28 U.S.C. § 1332(a). The requirement that the action be between citizens of
different states generally requires complete diversity, meaning that no plaintiff may be a citizen
of the same state as any defendant. McCready v. eBay, Inc., 453 F.3d 882, 891 (7th Cir. 2006).
A corporation is a citizen of both the state in which it is incorporated and the state where it has
its principal place of business. 28 U.S.C. § 1332(c); McCready, 453 F.3d at 891. An individual
is a citizen of the state of his domicile rather than the state of his residence. Simon v. Allstate
Emp. Group Med. Plan, 263 F.3d 656, 658 n.1 (7th Cir. 2001). “When the parties allege
residence but not citizenship, the court must dismiss the suit.” Guaranty Nat’l Title Co. v. J.E.G.
Assocs., 101 F.3d 57, 59 (7th Cir. 1996).
As the proponent of jurisdiction, the plaintiff has the burden of establishing the
requirements for diversity jurisdiction. Transit Express, 246 F.3d at 1023. In evaluating a
motion brought to dismiss for lack of subject matter jurisdiction, the Court accepts as true all
well-pleaded factual allegations and draws all reasonable references in favor of the plaintiff.
Long v. Shorebank Dev. Corp., 182 F.3d 548, 554 (7th Cir. 1999).

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DISCUSSION
The moving defendants seek dismissal arguing that the amended complaint does not set
forth the requirements necessary to establish diversity jurisdiction. The Court agrees. While
Plaintiff alleges that he is a resident of Lambertville, New Jersey, he fails to include any
allegations regarding his citizenship. (Dkt. No. 3 ¶ 4.) Plaintiff also fails to properly allege the
citizenship for some of the moving defendants. The amended complaint alleges that Defendants
Weinstein Brothers, Inc., Weinstein Brothers Memorial Chapels, and Weinstein Brothers
Funeral Home are all Illinois corporations with their principal place of business in Cook County,
Illinois. (Id. ¶ 8.) These allegations sufficiently establish that these defendants are Illinois
citizens. As to Defendants Weinstein Family Services Inc. and Weinstein Chapels, Inc.,
however, Plaintiff alleges they are Illinois corporations but fails to allege the state in which they
maintain their principal place of business. (Id.) Although Defendant FDSA has not joined in the
instant motion, the amended complaint also fails to allege the state of its principal place of
business. (Id. at ¶ 9.) Moreover, there are no allegations regarding the citizenship of Defendant
the Estate of Joel A. Weinstein. These deficiencies prevent the Court from determining whether
complete diversity exists between the parties and thus the Court must dismiss the amended
complaint for want of subject matter jurisdiction.
The moving defendants also claim that the amount in controversy does not exceed
$75,000.00 as Plaintiff alleges. They argue that Plaintiff lacks a good faith basis for claiming
$300,000 in damages stemming from the breach of a $4,800.00 contract. A district court
generally accepts the plaintiff’s good faith allegations of the amount in controversy unless it
appears to a legal certainty that the claim is really for less than the jurisdictional amount.
McMillan v. Sheraton Chi. Hotel & Towers, 567 F.3d 839, 844 (7th Cir. 2009). When a

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defendant challenges the plaintiff’s allegation of the amount in controversy, the plaintiff must
support its assertion with competent proof. (Id.) A good-faith estimate of the amount in
controversy is acceptable if it is plausible and adequately supported by evidence. Oshana v.
Coca-Cola Co., 472 F.3d 506, 511 (7th Cir. 2006). Once the jurisdictional facts have been
established, a case is subject to dismissal only if it is “legally certain” that recovery will be less
than the jurisdictional floor. Meridian Sec. Insur. Co. v. Sadowski, 441 F.3d 536, 543 (7th Cir.
2006).
Plaintiff responds that his assertion regarding the amount of controversy is controlling.
Yet, a plaintiff’s jurisdictional assertions are controlling only where they stand unchallenged.
McMilllan, 567 F.3d at 844. Plaintiff’s response does provide some factual support that he will
recover more than $75,000.00 when punitive damages and attorney’s fees are included, but does
so in a footnote which fails to provide sufficient detail to be considered “competent proof.” See,
e.g., Am. Bankers Life Assur. Co. v. Evans, 319 F.3d 907, 909 (7th Cir. 2003) (finding no
competent proof where plaintiff simply pointed to the theoretical availability of certain
categories of damages). Further, Plaintiff’s burden here is to provide a good faith estimate of the
amount in controversy, not the amount of damages he will likely recover. Plaintiff made no
effort to provide the Court with an estimate of the amount in controversy supported by affidavit
or by other evidentiary matter. Plaintiff’s failure to meet his burden of establishing the amount
in controversy further warrants dismissal of this action for want of jurisdiction.
Defendants also seek dismissal on several other grounds including that certain claims are
time-barred, that the fraud-based claims do not meet the particularity requirement of Rule 9(b),
and that other claims are not properly pled. Having determined that subject matter jurisdiction is
lacking, the Court makes no attempt to address the remaining challenges. Plaintiff is granted

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leave to amend to properly plead subject matter jurisdiction and to cure any other deficiencies
present in his amended complaint.
CONCLUSION
For the foregoing reasons, the Court grants the moving defendants’ motion to dismiss
without prejudice. The Court grants Plaintiff leave to file a second amended complaint within
three weeks from the date of this Order.

IT IS SO ORDERED.

Dated: May 13, 2011

Honorable Sharon Johnson Coleman
United States District Court

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