Cottrell, Inc. v. Ellis et al

Filing 12

ORDER: Defendants, the proponent of federal jurisdiction, are ORDERED to file an Amended Notice of Removal on or before October 19, 2012, to establish Defendant J. Nigel Ellis's citizenship. Signed by Judge G. Patrick Murphy on 10/11/2012. (mab)

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

COTTRELL, INC.,

)
)
Plaintiff,
)
vs.
)
)
J. NIGEL ELLIS, DYNAMIC SCIENTIFIC )
CONTROLS, INC., ELLIS LADDER )
IMPROVEMENTS, INC., and ELLIS )
LITIGATION SERVICES,
)
)
Defendants.
)

CIVIL NO. 12-1044-GPM

MEMORANDUM AND ORDER
MURPHY, District Judge:
This matter is before the Court sua sponte on the issue of federal subject matter jurisdiction
pursuant to Federal Rule of Civil Procedure 12(h)(3). See Foster v. Hill, 497 F.3d 695, 696-97 (7th Cir.
2007) (“It is the responsibility of a court to make an independent evaluation of whether subject matter
jurisdiction exists in every case.”); Johnson v. Wattenbarger, 361 F.3d 991, 992 (7th Cir. 2004) (a
district court’s “first duty in every suit” is “to determine the existence of subject-matter jurisdiction”).
Defendants J. Nigel Ellis, Dynamic Scientific Controls, Inc., Ellis Ladder Improvements, Inc.,
and Ellis Litigation Support removed this case from the Circuit Court of the Third Judicial Circuit,
Madison County, Illinois on September 28, 2012 pursuant to 28 U.S.C. §§ 1441, 1446, claiming that
this Court has original jurisdiction over the action pursuant to the complete diversity of the parties, as
per 28 U.S.C. § 1332 (Doc. 2). However, Defendants fail to properly allege the citizenship of J. Nigel
Ellis. The notice of removal states “Defendant J. Nigel Ellis is a resident of the State of Delaware.”
(Doc. 2). An allegation of “residence” as opposed to “citizenship” is insufficient to establish complete

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diversity. See Pollution Control Industries of America, Inc. v. Van Gundy, 21 F.3d 152, 155 (7th Cir.
1994).
“[S]ubject matter jurisdiction must be a matter of certainty and not of probabilities (however
high).” Murphy v. Schering Corporation, 878 F. Supp. 124, 125-26 (N.D. Ill. 1995). Accordingly,
pursuant to 28 U.S.C. § 1653, Defendant, the proponent of federal jurisdiction, is ORDERED to file
an Amended Notice of Removal on or before October 19, 2012, to establish Defendant J. Nigel Ellis’s
citizenship. If Defendant fails to file an Amended Notice of Removal in the manner and time
prescribed or if, after reviewing it, the Court finds that Plaintiff cannot establish federal subject matter
jurisdiction, the Court will remand the action for lack of jurisdiction. See Guaranty Nat’l Title Co. v.
J.E.G. Assocs., 101 F.3d 57, 59 (7th Cir. 1996) (remanding case because “it is not the court’s obligation
to lead [parties] through a jurisdictional paint-by-numbers scheme. Litigants who call on the resources
of a federal court must establish that the tribunal has jurisdiction, and when after multiple opportunities
they do not demonstrate that jurisdiction is present, the appropriate response is clear”).
IT IS SO ORDERED.
DATED: October 11, 2012
/s/ ZA ctàÜ|v~ `âÜÑ{ç
G. PATRICK MURPHY
United States District Judge

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