Tovar et al v. Nbty Inc. et al

Filing 11

ORDER Regarding Subject Matter Jurisdiction: Plaintiffs are ORDERED to file a first amended complaint properly alleging citizenship, so as to invoke minimal diversity of citizenship under the CAFA not later than October 13, 2016. Failure to file a first amended complaint as herein ordered will result in the dismissal of this case for lack of federal subject matter jurisdiction. Signed by Judge David R. Herndon on 10/6/2016. (dsw)

UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF ILLINOIS
GHERSON TOVAR and LARRY WIEGAND,
Individually and on behalf of all others
similarly situated,
Plaintiffs,
v.
NBTY, INC., and UNITED STATES
NUTRITION INC.,
Defendants.

No. 16-cv-1037-DRH

ORDER
HERNDON, District Judge:
This matter is before the Court sua sponte for determination of whether
subject matter jurisdiction exists. This is a putative class action commenced after
the effective date of the CAFA in which the proposed class is alleged to contain one
hundred or more members and the claims of the proposed class are alleged to
total in the aggregate an amount in excess of $5 million, exclusive of interest and
costs (Doc. 1). Unfortunately, minimal diversity of citizenship is not properly
alleged.
According to the complaint, defendant NBTY, Inc. is “licensed in” the State
of Delaware, with its principal place of business in New York. and defendant
United States Nutrition, Inc. is “licensed in” the State of Delaware with its

principal place of business in New York. As the Seventh Circuit has explained,
being “licensed” or “authorized” to do business in a state does not necessarily
make a corporation a citizen of that state because besides the state of
incorporation, a corporation is only a citizen of the state in which it has its
principal place of business (or its “nerve center”), not every state in which it does
business.” Wojan v. General Motors Corp., 851 F.2d 969, 974 (7th Cir. 1988).
Here, plaintiffs have alleged each defendant’s principal place of business (New
York) but have failed to allege each defendant’s state of incorporation. Plaintiffs
must amend their complaint to properly allege the citizenship of the defendant
corporations.
Jurisdictional allegations as to the plaintiffs are also insufficient. The
named plaintiffs (Tovar and Wiegand), like the members of the proposed class,
are

alleged

only

to

be

residents

of Illinois.

Of

course,

to

invoke

federal diversity jurisdiction, a natural person must be alleged to be a citizen, not
a resident, of a state. Thus, allegations of residence are insufficient to
establish diversity jurisdiction. See Held v. Held, 137 F.3d 998, 1000 (7th Cir.
1998)). Plaintiffs must amend their complaint to allege the citizenship of Tovar,
Wiegand, or a member of the proposed class not the residence of the proposed
class members.
Plaintiffs are ORDERED to file a first amended complaint properly alleging
citizenship, so as to invoke minimal diversity of citizenship under the CAFA not
later than October 13, 2016. Failure to file a first amended complaint as herein

ordered will result in the dismissal of this case for lack of federal subject matter
jurisdiction.
IT IS SO ORDERED.
Signed this 6th day of October, 2016.

Digitally signed by
Judge David R.
Herndon
Date: 2016.10.06
11:57:07 -05'00'
United States District Judge