Birk v. Stark

Filing 11

ORDER ON THRESHOLD JURISDICTIONAL REVIEW: As fully explained in the attached Order, the complaint currently on file before the Court does not properly plead all elements of diversity jurisdiction under 28 U.S.C. 1332. Accordingly, the Court DENIES f or lack of subject matter jurisdiction (without prejudice to the motion later being re-filed) 10 Plaintiff's motion for Default Judgment as to Gary Stark. The Court DIRECTS Plaintiff's counsel to file a First Amended Complaint on or before January 31, 2012. See Order for additional details.(Amended Complaint due by 1/31/2012.) Signed by Judge Michael J. Reagan on 1/6/2012. (soh )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TERESA BIRK,
Plaintiff,
vs.
GARY STARK,
Defendant.

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Case No. 11-cv-1007-MJR-PMF

ORDER ON THRESHOLD JURISDICTIONAL REVIEW
REAGAN, District Judge:
On November 16, 2011, Teresa Birk filed suit in this Court alleging
professional negligence (legal malpractice) by attorney Gary Stark in handling Birk’s
2005 personal injury suit against Robert Sinn (Case No. 05-cv-04144-JPG).

On

January 4, 2012, Birk’s current counsel secured a clerk’s entry of default, reflecting that
Defendant Stark had been served and had failed to timely respond to the complaint.
Birk now seeks default judgment from the Court.
The case was randomly assigned to the undersigned District Judge,
whose first task it is to verify that subject matter jurisdiction lies. See Avila v. Pappas,
591 F.3d 552, 553 (7th Cir. 2010)(“The first question in every case is whether the
court has jurisdiction”); Johnson v. Wattenbarger, 361 F.3d 991, 992 (7th Cir.
2004)(“All too often both litigants and judges disregard their first duty in every
suit: to determine the existence of subject-matter jurisdiction.”).
Birk’s complaint invokes subject matter jurisdiction under the federal
diversity statute, 28 U.S.C. 1332, which requires complete diversity of citizenship
among the parties plus an amount in controversy exceeding $75,000, exclusive of

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interest and costs. The complaint properly alleges the amount in controversy but falls
short as to citizenship. Specifically, Birk has alleged that “Plaintiff is a resident of Cape
Girardeau, Missouri,” and “Defendant is a resident of Anna, Illinois” (Doc. 2, p. 1).
However, there is a distinction between residing in and being a citizen of a particular
state. Seventh Circuit law plainly holds that residence does not equate to citizenship,
and the latter controls for jurisdictional purposes. Pleading residence is inadequate to
invoke diversity jurisdiction, the Seventh Circuit has emphatically and "repeatedly
reminded litigants and district judges" alike. Craig v. Ontario Corp., 543 F.3d 872, 876
(7th Cir. 2008), citing Camico Mut. Ins. Co. v. Citizens Bank, 474 F.3d 989, 992, and
Meyerson v. Harrah's East Chicago Casino, 299 F.3d 616, 617 (7th Cir. 2002).
Accordingly, the Court DIRECTS Plaintiff’s counsel to file a First Amended
Complaint by January 31, 2012, plainly alleging all aspects of diversity jurisdiction,
including the citizenship of both parties.
The Court DENIES for lack of jurisdiction (without prejudice to Plaintiff
re-filing) the pending motion for default judgment against Defendant Stark (Doc. 10).
Once counsel has filed a complaint properly alleging the elements of subject matter
jurisdiction, Plaintiff can freshly apply for default entry and default judgment under
Federal Rules of Civil Procedure 55(a) and (b), respectively. One point bears note as to
any future motion for default judgment.
Federal Rule of Civil Procedure 55(b)(1) governs default judgment
motions where the plaintiff’s claim is for a sum certain or a sum that can be made
certain by computation. Rule 55(b)(1) provides that default judgment must be entered
on the plaintiff’s request if the defendant is not a minor or incompetent person, the claim

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is for a sum certain (or sum which can be made certain by calculation), and the plaintiff
supplies an affidavit showing the amount due. Rule 55(b)(2) covers all other cases and
authorizes the Court to hold a hearing, if needed, to: “(A) conduct an accounting; (B)
determine the amount of damages; (C) establish the truth of any allegation by evidence;
or (D) investigate any other matter.”
Birk’s two-sentence motion does not make clear which subsection this
case falls under and leaves some question as to the relief sought by default. The best
the Court can glean, Plaintiff Birk seeks $75,000 in damages, no more and no less. If
and when Plaintiff’s counsel re-files a motion for default judgment herein, the motion
should clarify the subsection of Rule 55(b) under which default judgment is sought and
expressly state the relief requested (the precise amount of damages or whatever relief
is sought via the default judgment). That information should be contained in the motion
itself (which may be supported by affidavit). This will guide the Court’s determination as
to whether Rule 55(b)(1) default is permissible based on an affidavit alone or whether a
hearing needs to be conducted under Rule 55(b)(2), at which Plaintiff’s counsel would
present evidence to establish the amount of damages or other relief sought.
IT IS SO ORDERED.
DATED January 6, 2012.
s/ Michael J. Reagan
Michael J. Reagan
United States District Judge

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