Kurtis M. Bailey v. Bernzomatic et al

Filing 59

ORDER-WRITTEN Opinion entered by the Honorable Philip G. Reinhard on 9/21/2016: For the reasons set forth below, the judgment 53 is vacated. The order 52 dismissing this case for lack of subject matter jurisdiction is vacated in part. Worthing ton Cylinder Corporation and Worthington Industries, Inc. are reinstated as defendants. Bernzomatic is terminated on the docket of this case as it does not appear to be an entity and thus was never an actual defendant. The dismissal order remains eff ective as to all other defendants. On or before October 7, 2016, plaintiff shall file an amended complaint against only Worthington Cylinder Corporation and Worthington Industries, Inc. If plaintiff wishes to add any additional defendants, such as Worthington Cylinders Wisconsin, LLC, he must file a motion, on or before October 28, 2016, seeking leave to so amend the complaint. Signed by the Honorable Philip G. Reinhard on 9/21/2016. [see Statement-Opinion] Mailed notice (kms)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
Kurtis M. Bailey,
Plaintiff,
vs.
Bernzomatic, et al.,
Defendants.

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Case No. 16 C 07548

Judge Philip G. Reinhard

ORDER
For the reasons set forth below, the judgment [53] is vacated. The order [52] dismissing
this case for lack of subject matter jurisdiction is vacated in part. Worthington Cylinder
Corporation and Worthington Industries, Inc. are reinstated as defendants. Bernzomatic is
terminated on the docket of this case as it does not appear to be an entity and thus was never an
actual defendant. The dismissal order remains effective as to all other defendants. On or before
October 7, 2016, plaintiff shall file an amended complaint against only Worthington Cylinder
Corporation and Worthington Industries, Inc. If plaintiff wishes to add any additional
defendants, such as Worthington Cylinders Wisconsin, LLC , he must file a motion, on or before
October 28, 2016, seeking leave to so amend the complaint.
STATEMENT-OPINION
Plaintiff moves [54] to set aside the court’s dismissal [52] of this case for lack of subject
matter jurisdiction.1 Attached to his motion is a proposed second amended complaint [54-5].
Defendants Worthington Cylinder Corporation and Worthington Industries, Inc. oppose the
motion.
This case was initially filed in the United States District Court of the Central District of
California on March 10, 2016. It was transferred on the motion of defendants Worthington
Cylinder Corporation and Worthington Industries, Inc. to the Northern District of Illinois. When
transferred, the case was assigned to the Eastern Division of the Northern District of Illinois
which in turn transferred it here, the Western Division of the Northern District of Illinois. The
reason for the transfer here is that plaintiff alleges he lives, and was injured, in Winnebago
County, Illinois which is situated in this district and division.

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Plaintiff identifies Fed. R. Civ. P. 60(b) as his vehicle for seeking relief but, having
made his motion no later than 28 days after the judgment was entered, Fed. R. Civ. P. 59(e) is
the correct vehicle for seeking relief.
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The original complaint failed to allege the citizenship of plaintiff. It named four
corporate defendants: Worthington Cylinder Corporation, Worthington Industries, Inc., Irwin
Industrial Tool Company and Newell Operating Company. It did not allege the state of
incorporation nor the principal place of business of any of these corporations. It also named
“Bernzomatic, an Unincorporated Division of Irwin Industrial Tool Company. As an
unincorporated division of Irwin Industrial Tool Company, Bernzomatic would not have a
citizenship of its own. It would not be a separate legal entity from Irwin Industrial Tool
Company. The court, therefore, ordered [43] plaintiff to file amended jurisdictional allegations
alleging plaintiff’s state of citizenship and the state of incorporation and principal place of
business of the four corporate defendants.
When plaintiff file his first amended complaint he properly pled that he was a citizen of
Illinois but the complaint again failed to allege the state of incorporation or principal place of
business of any of the four named corporate defendants. Because of this failure, the court
dismissed [52] for lack of subject matter jurisdiction. The first amended complaint also made
reference to Worthington Cylinders Wisconsin, LLC (“LLC”). The LLC was not named a party
in the original complaint and, as the court observed in its dismissal order [52] plaintiff appeared
to be alleging the LLC was an assumed name or alter ego of Worthington Cylinder Corporation.
As the LLC was not a party, its citizenship, strictly speaking, was not relevant. The court did,
however, set forth the requirements for pleading the citizenship of a limited liability company
and noted plaintiff had failed to plead the required information.
Plaintiff now asks the court to set aside its order dismissing this case for lack of
subject matter jurisdiction and attaches a proposed second amended complaint which he asks
leave to file. The proposed second amended complaint alleges plaintiff is a citizen of Illinois. It
does not list any “John Does” as defendants. It no longer names Irwin Industrial Tool Company
nor Newell Operating Company, Inc. as defendants. It alleges Worthington Cylinder
Corporation is incorporated in Wisconsin with its principal place of business in Wisconsin and
that Worthington Industries, Inc. is incorporated in Ohio with its principal place of business in
Ohio. It alleges the amount in controversy exceeds $75,000. As to plaintiff, and these two
defendants, the proposed second amended complaint alleges diversity of citizenship jurisdiction.
The proposed second amended complaint also alleges “Defendant, Bernzomatic, is a
company owned by Worthington Industries.” Bernzomatic appears to be a brand of products
offered by Worthington Industries rather than a company of any kind.
(http://worthingtonindustries.com/Company/Mergers-Acquisitions;
http://worthingtonindustries.com/Products/Consumer-Tradesman-Products/Bernzomatic-(1)). No
entity named Bernzomatic has been served in this case. No entry of appearance has been made
on its behalf.
The proposed second amended complaint also lists Worthington Cylinders Wisconsin,
LLC as a defendant. However, Worthington Cylinders Wisconsin, LLC was not named as a
defendant in the original complaint nor in the first amended complaint. If plaintiff wants to

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amend the complaint to add the LLC as a defendant, plaintiff needs to file a separate motion
under Fed. R. Civ. P. 15.
“Defective allegations of jurisdiction may be amended, upon terms, in the trial or
appellate court.” 28 U.S.C. § 1653. This statute allows amendment of jurisdictional allegations
where diversity of citizenship actually exists but was defectively pled. Newman-Green, Inc. v.
Alfonzo-Larrain, 490 U.S. 826, 831 (1989). Where dismissal for lack of subject matter
jurisdiction has occurred due to defective jurisdictional allegations, and a proposed new
complaint indicates diversity actually exists, Rule 59(e) has been used to vacate the dismissal for
lack of subject matter jurisdiction. Villa v. Brady Publishing, No. 02 C 570, 2002 WL 1400345,
* 2 (N.D. Ill. Jun. 27, 2002) (Kocoras, J.) Here, plaintiff’s proposed second amended complaint
offers a sufficient basis for diversity jurisdiction between plaintiff and defendants Worthington
Cylinder Corporation and Worthington Industries, Inc.
For the foregoing reasons, the order [52] dismissing this case for lack of subject matter
jurisdiction is vacated in part. The proposed second amended complaint makes no allegations
against Irwin Industrial Tool Company and Newell Operating Company, Inc. so they remain
dismissed as defendants. The proposed second amended complaint makes no allegations against
any John Doe defendants. All John Does remain dismissed as defendants. Worthington
Cylinders Wisconsin, LLC was never properly added as a defendant. If plaintiff wishes to add
Worthington Cylinders Wisconsin, LLC as a defendant he must file a motion to amend under
Fed. R. Civ. P. 15. Bernzomatic appears to be a brand not an entity so it was never an actual
defendant in this case and will be terminated as a party on the docket of this case. This leaves
Worthington Cylinder Corporation and Worthington Industries, Inc. as the only defendants. On
or before October 7, 2016, plaintiff shall file an amended complaint against only Worthington
Cylinder Corporation and Worthington Industries, Inc. If plaintiff wishes to add any additional
defendants, such as Worthington Cylinders Wisconsin, LLC, he must file a motion, on or before
October 28, 2016, seeking leave to so amend the complaint. The partial vacation of the dismissal
order [52] requires vacation of the judgment [53] as the dismissal order no longer disposes of all
the defendants and, therefore, does not end the action. See Fed. R. Civ. P. 54(b).
The court expects better lawyering from plaintiff’s counsel throughout the remainder of
this case.
Date: 9/21/2016

ENTER:

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United States District Court Judge

Electronic Notices. (LC)

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