Howard Johnson International, Inc. v. Cheesook, LLC et al

Filing 4

ORDER re 2 Complaint, filed by Howard Johnson International, Inc. Signed by Judge G. Patrick Murphy on 12/21/2011. (MAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

HOWARD JOHNSON INTERNATIONAL, )
INC.,
)
Delaware Corporation
)
)
Plaintiff,
)
)
vs.
)
)
CHEESOOK, LLC and KYO NAM CHEE )

CIVIL NO. 11 - 1094 - GPM

Defendants.

MEMORANDUM AND ORDER
MURPHY, District Judge:
The Court, on its own motion, has reviewed the complaint in the present case to determine
whether it has subject matter jurisdiction. Under Federal Rule of Civil Procedure 12(h)(3), this
Court is obligated to review its own jurisdiction sua sponte. See Hammes v. AAMCO Transmissions,
Inc., 33 F.3d 774, 778 (7th Cir. 1994) (“the court has an independent duty to satisfy itself that it has
subject-matter jurisdiction”); see also Ricketts v. Midwest Nat’l Bank, 874 F.2d 1177, 1181 (7th Cir.
1989). In light of Seventh Circuit Court of Appeals opinions, see, e.g., Smith v. American Gen’l
Life and Accident Ins. Co., 337 F.3d 888 (7th Cir. 2003); Tylka v. Gerber Prods. Co., 211 F.3d 445
(7th Cir. 2000); America’s Best Inns, Inc. v. Best Inns of Abilene, L.P., 980 F.2d 1072 (7th Cir. 1992)
(per curiam), this Court has undertaken a more rigorous initial review of complaints to ensure that
jurisdiction has been properly pleaded.
Plaintiff filed this action under 28 U.S.C. § 1332; however Plaintiff’s jurisdictional
allegations are woefully deficient. Allegation based upon “information and belief” are insufficient
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to establish subject matter jurisdiction. America’s Best Inns, Inc., 980 F.2d at 1074. Although it
seems likely Plaintiff will be able to establish jurisdiction by more appropriate allegations, “subject
matter jurisdiction must be a matter of certainty and not of probabilities.” Murphy v. Schering
Corporation, 878 F. Supp. 124, 125-26 (N.D. Ill. 1995). Accordingly, Plaintiff is ORDERED to
file an Amended Complaint on or before 1/4/2012 to properly allege diversity of citizenship
jurisdiction. Plaintiff’s failure to cure the deficiencies in its pleading will result in dismissal of this
action for lack of subject matter jurisdiction.

IT IS SO ORDERED.
DATED: December 21, 2011
s / ZA ctàÜ|v~ `âÜÑ{ç
G. PATRICK MURPHY
United States District Judge

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