Liening v. Satar

Filing 8

ORDER striking #2 complaint filed by Nancy L. Liening. Plaintiff's amended complaint is due by 5/14/2012. Signed by Chief Judge David R. Herndon on 4/25/2012. (msdi)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
NANCY L. LIENING,
Plaintiff,
v.
DR. WAGIH A. SATAR,
Defendant.

No. 12-120-DRH
ORDER

HERNDON, Chief Judge:
In this Order the Court sua sponte raises the issue of whether it has subject
matter jurisdiction over this case. See Wis. Knife Works v. Nat’l Metal Crafters, 781
F.2d 1280, 1282 (7th Cir. 1986) (“The first thing a federal judge should do when a
complaint is filed is check to see that federal jurisdiction is properly alleged.”);
McCready v. White, 417 F.3d 700, 702 (7th Cir. 2005)(“Ensuring the existence of
subject matter jurisdiction is the court’s first duty in every lawsuit.”). Upon a
threshold review, the Court observes what may be a potential jurisdictional problem.
“Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is
power to declare the law, and when it ceases to exist, the only function remaining to
the court is that of announcing the fact and dismissing the cause.”

Ex parte

McCardle, 74 U.S. 506, 514 (1868); Steel Co. v. Citizens for a Better Env’t, 523 U.S.
83, 94 (1998). In fact, federal courts are “obliged to police the constitutional and
statutory limitations on their jurisdiction” and should raise and consider
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jurisdictional issues regardless of whether the matter is ever addressed by the parties
to the suit. See Kreuger v. Cartwright, 996 F.2d 928, 930-31 (7th Cir. 1993);
Kanzelberger v. Kanzelberger, 782 F.2d 774, 777 (7th Cir. 1986). Moreover, the
party invoking federal jurisdiction bears the burden of demonstrating that the
jurisdictional requirements have been met. Chase v. Shop ‘N Save Warehouse
Foods, Inc., 110 F.3d 424, 427 (7th Cir. 1997).
The statute regarding diversity jurisdiction, 28 U.S.C. § 1332, requires
complete diversity between the parties plus an amount in controversy exceeding
$75,000, exclusive of interest and costs. Complete diversity means that “none of the
parties on either side of the litigation may be a citizen of the state of which a party on
the other side is a citizen.” Howell v. Tribune Entm’t Co., 106 F.3d 215, 217 (7th
Cir. 1997) (citations omitted). Factual allegations of citizenship must be made in the
pleadings, demonstrating complete diversity. See Chi. Stadium Corp. v. State of
Ind., 220 F.2d 797, 798-99 (7th Cir. 1955) (emphasis added).
In her complaint, plaintiff alleges that diversity is present as "[p]laintiff lives in
Illinois and [d]efendant Dr. Wagih A. Satar lives in Princeton, Indiana." It is also
alleged, however, that defendant is licensed to practice in Illinois and that is where
the alleged malpractice occurred. While defendant does not dispute that diversity is
present, federal jurisdiction cannot be conferred by consent and there are no
allegations made with regard to citizenship. See Kanzelberger, 782 F.2d at 777
(“But since federal jurisdiction cannot be conferred by consent of the parties, if the

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facts place the district court on notice that the jurisdictional allegation probably is
false, the court is duty-bound to demand proof of its truth.”). The allegations made
here will not suffice. See Meyerson v. Harrah’s E. Chi. Casino, 299 F.3d 616, 617
(7th Cir. 2002) (“[R]esidence and citizenship are not synonymous and it is
[citizenship] that matters for purposes of the diversity jurisdiction.”). Clearly one can
live in one state and be a citizen of another. Until plaintiff properly pleads diversity
of citizenship, the Court must approach this case as if jurisdiction does not exist.
Without those allegations, the Court does not have the authority to “consider the
merits of a case over which it is without jurisdiction.” Firestone Tire & Rubber Co.
v. Risjord, 449 U.S. 368, 379 (1981).
The Court is not concluding that subject matter jurisdiction does not exist.
However, it is currently in question, and thus not established. Accordingly, the Court
strikes plaintiff’s complaint and allows her up to and including May 14, 2012, to file
an amended complaint properly setting forth subject matter jurisdiction.
IT IS SO ORDERED.
Signed this 25th day of April, 2012.

Digitally signed by David
R. Herndon
Date: 2012.04.25
12:44:48 -05'00'
Chief Judge
United States District Court

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