Lundberg et al v. Rivera-Cordovez et al

Filing 9

MEMORANDUM Order Signed by the Honorable Milton I. Shadur on 3/11/2013. Mailed notice by judge's staff. (srb,)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOHN A. LUNDBERG, JR.,
et al.,
Plaintiffs,
v.
FABIAN RIVERA-CORDOVEZ,
et al.,
Defendants.

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No.

13 C 1683

MEMORANDUM ORDER
This personal injury action was originally filed in the
Circuit Court of the Twelfth Judicial Circuit, Will County,
Illinois, following which a timely Notice of Removal (“Notice”)
brought the case to this District Court and it was assigned at
random to this Court’s calendar.

With the over-$75,000 amount in

controversy having been established by the demands made by
counsel for plaintiffs John Lundberg, Jr. and Eric Hill in this
personal injury action, federal jurisdiction is claimed on
diversity of citizenship grounds.

This memorandum order is

issued sua sponte because of some problematic aspects revealed by
the Notice.
To begin with, Notice ¶¶2 and 3 mistakenly speak of the
residences of the two plaintiffs and of individual codefendant
Fabian Rivera-Cordovez (“Rivera”) rather than their respective
states of citizenship.

Although our Court of Appeals has stated

on several occasions that “the district court must dismiss the

suit” when a pleading has made that mistake (see, e.g., Adams v.
Catrambone, 359 F.3d 858, 861 n.3 (7th Cir. 2004)), this Court
has always been loath to force the payment of a second $350
filing fee where the likelihood is that the concepts of an
individual’s residence and his state of citizenship coincide.
Accordingly no dismissal will be ordered on that account,
although defense counsel must promptly correct the error by
filing an amendment to the Notice.
More troublesome is another and really inexplicable error on
defense counsel’s part.

Even though the Complaint names “Swift

Transport Co., Inc.” as the other codefendant, with Complaint ¶3
identifying Rivera as its agent or employee, the Notice has been
filed on behalf of individual defendant Rivera and “Swift
Transportation of Arizona, LLC, a Delaware limited liability
company.”

Notice ¶4 identifies that entity as “a subsidiary of

Swift Transportation Company.”

That puzzling handling by defense

counsel also needs to be corrected:
1.

No defendant can on its own change the identity of

the party being sued (and the latter must of course be the
party that joins in the removal of the action).

If

plaintiff has mistakenly spoken of “Swift Transport Co.,
Inc.” when the actual corporate name is “Swift
Transportation Company,” that mistake may of course be
referred to in the Notice--but that does not equate to

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naming a totally different party, as was done here.
2.

If actually-named codefendant Swift Transport, Inc.

is an erroneous misnomer for Swift Transportation Company,
the statements in Notice ¶4 are inadequate to confirm the
existence of the required diversity of citizenship.

That

last-named corporation is identified as having been
organized in Delaware, but the other component of its
corporate citizenship (the location of its principal place
of business) is not specified.

That information is supplied

instead as to Swift Transportation of Arizona, LLC, which is
asserted to be a subsidiary corporation.
This Court will not now dispatch this action because of the
mishandling of diversity considerations.

But if no properly

amended Notice is filed (with a courtesy copy delivered to this
Court) on or before March 22, 2013, this Court will be
constrained to comply with our Court of Appeals’ Draconian
approach to subject matter jurisdiction by dismissing this
action.

________________________________________
Milton I. Shadur
Senior United States District Judge
Date:

March 11, 2013

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