Rustom v. Rustom et al

Filing 47

MEMORANDUM Opinion and Order Signed by the Honorable Jeffrey Cole on 5/9/2018:Mailed notice(jms, )

Case: 1:17-cv-09061 Document #: 47 Filed: 05/09/18 Page 1 of 3 PageID #:458

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MAHER RUSTOM and PREFERRED
OPEN MRI, LTD.,
Plaintiffs,
v.
NACER RUSTOM, et al.,
Defendants.

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No. 17 C 9061
Judge Marvin E. Aspen
Magistrate Judge Jeffrey Cole

MEMORANDUM OPINION AND ORDER
The plaintiffs have filed a “Motion for an Evidentiary Hearing and to Permit Some
Discovery” in order to determine the owner of the corporate plaintiff, Preferred Open MRI. This is
a fraternal feud over some real estate that, according to the plaintiffs’ verified amended complaint,
seems to have no place in federal district court. The verified amended complaint – sworn to under
the penalty of perjury by individual plaintiff, Maher Rustom [Dkt. # 28, at 12] – alleges that the
individual parties are brothers, with the plaintiff Maher Rustom domiciled in Saudi Arabia and the
defendant Naser Rustom domiciled in Cook County, Illinois. [Dkt. #28, ¶ 6]. But, the complaint also
alleges that both the plaintiff Preferred Open MRI and the defendant Galilee Medical Center are
Illinois corporations. [Dkt. # 28, ¶ 8, 10]. Indeed, attached to plaintiff’s verified complaint are the
Illinois corporate report for Preferred Open MRI for 2018, indicating it was incorporated in Illinois
in 2002. [Dkt. # 28-4]; see 28 USC §1332(c)(1). In order to invoke the court’s diversity jurisdiction
under 28 USC §1332 as plaintiffs have done here [Dkt. # 28, ¶ 6], there must be complete diversity
of citizenship between the parties. Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005)(“Since
Strawbridge v. Curtiss, 3 Cranch 267, 2 L.Ed. 435 (1806), we have read the statutory formulation

Case: 1:17-cv-09061 Document #: 47 Filed: 05/09/18 Page 2 of 3 PageID #:459

‘between ... citizens of different States” to require complete diversity between all plaintiffs and all
defendants.’”); Webb v. Fin. Indus. Regulatory Auth., Inc., No. 17-2526, 2018 WL 2111883, at *1
(7th Cir. May 8, 2018).
The verified complaint fails to allege that there is complete diversity among the parties – one
plaintiff and both defendants are alleged to be citizens of Illinois – which would mean that the court
has no jurisdiction over this brotherly battle. However, such a judgment is well beyond the scope
of my authority as a magistrate judge operating under a referral order. Still, as it appears I have no
jurisdiction to act at all, I go no farther at this juncture than to recommend that Judge Aspen deny
the plaintiff’s motion for a hearing and discovery.
Moreover, the plaintiff’s “Motion for an Evidentiary Hearing and to Permit Some Discovery”
was prompted by the defendants’ motion to dismiss the verified amended complaint. Among the
arguments defendant raised to support dismissal, was that plaintiffs could not state a claim for an
accounting of Preferred Open MRI because defendant Naser Rustom is the sole owner and plaintiff
Maher Rustom has no interest in it. [Dkt. #40, at 12-13]. Plaintiffs argue in their instant motion that
Maher Rustom is the owner and have attached documentation they claim proves it. As a motion to
dismiss their complaint is pending, the appropriate vehicle for such an argument and to bring such
evidence into the record is a response to the motion to dismiss. At that point, Judge Aspen may or
may not consider them and may or may not choose to convert the motion to dismiss in to one for
summary judgment. See, generally, Hecker v. Deere & Co., 556 F.3d 575, 582 (7th Cir. 2009);
Tierney v. Vahle, 304 F.3d 734, 738 (7th Cir. 2002). But, as noted, there are jurisdictional fish to
fry before any of that can happen.
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Case: 1:17-cv-09061 Document #: 47 Filed: 05/09/18 Page 3 of 3 PageID #:460

Lastly, the plaintiff asked the court to “permit some discovery,” but presumably discovery
has been under way all along and has not been stayed, and that would include subpoenas under
Fed.R.Civ.P. 45.
Accordingly, the plaintiff’s Motion is therefore denied. It is not for me to dismiss the case
for want of jurisdiction, assuming that the present analysis of jurisdiction is correct. That is a matter
for Judge Aspen.

ENTERED:
UNITED STATES MAGISTRATE JUDGE

DATE: 5/9/18

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