Swearingen, et al v. Lenard

Filing 54

ORDER DENYING 48 Motion to Dismiss Case for Lack of Jurisdiction and DENYING as moot 52 Motion to Amend/Correct. Signed by Judge Nancy J. Rosenstengel on 11/21/2017. (jkb2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BONNIE SMITH SWEARINGEN, a
disabled person, by and through her
guardian BERNIE SMITH,
Plaintiff,
vs.
ROBERT LENARD, JR., DONNA K.
LENARD, DENNA DAVIS,
CURTIS MARTIN, and
PEOPLES NATIONAL BANK,
Defendants.

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Case No. 3:17-CV-00635-NJR-DGW

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Pending before the Court is a Motion to Dismiss for Lack of Jurisdiction filed by
Defendant Curtis Martin (Doc. 48) and a Motion to Amend or Correct First Amended
Complaint filed by Plaintiff Bonnie Smith Swearingen (Doc. 52). The Court notes that
although Swearingen titles the document “Corrections to First Amended Complaint and
Supplement,” the allegations are almost identical to the first amended complaint filed
less than two months ago. Because the Court does not believe Swearingen is actually
attempting to amend the complaint, so much as respond to the motion to dismiss, the
Court construes the document as a response to Defendant’s motion. 1

1

Swearingen also requests this Court “remove” attorney James Van Winkle from the case, claiming there
is a conflict of interest. (Doc. 52, p. 24). The allegations raised by Swearingen appear to be that attorney
Van Winkle represents both Defendant Davis and the Guardianship and Trust. Whether that in fact creates
a conflict of interest in this case is unclear to the Court. Thus, the Court declines to address this issue.

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FACTUAL BACKGROUND
This litigation is brought by Bernie Smith on behalf of his mother, Bonnie Smith
Swearingen, concerning property alleged to have been wrongfully taken from
Swearingen by Robert Lenard, Jr., Donna Kay Lenard, Deena Davis, Curtis Martin, and
Peoples National Bank. (Doc. 38, pp. 1-12). Specifically, Smith alleges the Lenards, in
their role as Powers of Attorney for Swearingen’s late husband, stole property out of
Swearingen’s house and fraudulently withdrew money from her bank account. (Doc. 38,
pp. 3-5). Smith further alleges Peoples National Bank participated with the Lenards in a
conspiracy to steal from Swearingen by hiding money from both Smith and the Court.
(Doc. 38, p. 11). Finally, Smith alleges Defendant Deena Davis acted fraudulently and in
conspiracy with Defendant Curtis Martin to become the sole trustee of Swearingen’s
Estate, and in violation of her fiduciary duty, took money from the trust for her personal
benefit and to the financial benefit of Martin. (Doc. 38, pp. 6-7, 8-10). Smith requests the
Court order Defendants to pay restitution to Swearingen’s trust for the alleged illegally
removed funds. (Doc. 38, pp. 12-18).
ANALYSIS
The Complaint alleges diversity of citizenship under 28 U.S.C. § 1332 as the basis
for this Court’s subject matter jurisdiction. (Doc. 1, p. 3). To satisfy diversity jurisdiction,
a plaintiff must allege: (1) the matter in controversy exceeds the sum or value of $75,000,
exclusive of interest and costs; and (2) the controversy is between citizens of different
states. 28 U.S.C. § 1332. Here, Smith alleges damages in the amount of $700,000, far in
excess of the required $75,000, thus the first requirement is met.
For diversity jurisdiction purposes, an individual is considered to be the citizen of
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the state in which she is domiciled, Pollution Control Indus. of Am., Inc. v. Van Gundy,
21 F.3d 152, 155 n. 4 (7th Cir. 1994), which means the state where the person is physically
present with an intent to remain indefinitely, Perry v. Pogemiller, 16 F.3d 138, 140 (7th Cir.
1993). Here, Bernie Smith brings claims in his representative capacity as a co-guardian
of the estate of his mother, Bonnie Smith Swearingen. 2 A guardian who brings suit in
that capacity has the citizenship of his ward. 28 U.S.C. § 1332(c)(2); Gustafson v.
Zumbrunnen, 546 F.3d 398, 400 (7th Cir. 2008). The parties apparently agree that Bonnie
Smith Swearingen is a citizen of Indiana, where she lives in a skilled nursing facility.
(Doc. 18, p. 2, n. 1). Defendants are all citizens of Illinois. (Doc. 41, p. 8). As such,
complete diversity exists.
Martin claims that Smith also has filed claims in his individual capacity, and thus
his citizenship (Illinois) defeats diversity. (Doc. 48, pp. 1-2). The basis of this claim
appears to be a few sentences in the nineteen page document. Specifically, Martin points
to language in the Amended Complaint where Smith states Defendant Martin “Bernie
Smith and Bonnie Smith Swearingen who are both Mr. Martin’s clients,” and claims that
Martin “breeched his contract with Bonnie Smith Swearingen and Bernie Smith.”
(Doc. 48, p. 5)(Citing Doc. 38, pp. 8-9, 16-17). Presumably, Martin wants the Court to
read these statements as evidence that Smith is raising an individual claim for
malpractice against him. The Court is not convinced, however, that this is Smith’s intent.
Unlike Martin, who is both an attorney and represented by an attorney, Smith is
2

Originally, Tara Smith was also listed as a plaintiff in this case. Because she is a citizen of the state of
Illinois, and all of the defendants are citizens of Illinois, her presence as a plaintiff would defeat diversity.
As the Indiana Court recognized, however, Tara Smith did not have any individual claims and had only
joined as a plaintiff to support her husband. (Doc. 18, p. 2, n. 1 ). This Court therefore granted Tara Smith’s
request to be removed as a plaintiff after transfer of the case. (Doc. 29). Thus, the only plaintiff remaining is
Bonnie Smith Swearingen, by her co-guardian Bernie Smith.

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proceeding pro se and does not appear to be a sophisticated litigant. Smith has been clear
that his intent is to represent his mother’s interests. Smith states he hired Martin to “go
after William C. Swearingen, Robert and Donna Lenard, and Peoples National Bank to
recover what rightfully belonged to Bonnie Smith Swearingen’s Estate.” (Doc. 38, p. 17)
(emphasis added). Further, Smith requests that all restitution be paid into Swearingen’s
trust, not to himself. (Doc. 38, pp. 12-13). Thus, Smith’s goal appears to be to obtain
restitution to the estate of his mother, for whom he is a plenary guardian, not to obtain
any individual relief. Thus, the Court finds Smith is proceeding solely in his
representative capacity and is not raising any independent claims for relief.
CONCLUSION
Because Smith is proceeding solely in his representative as a co-guardian of his
mother’s estate, his citizenship is the same as hers—Indiana. And because all of the
Defendants are citizens of the State of Illinois, complete diversity jurisdiction exists
between the parties. Defendant Martin’s Motion to Dismiss (Doc. 48) is therefore
DENIED. The Motion to Amend or Correct First Amended Complaint filed by Plaintiff
Bonnie Smith Swearingen (Doc. 52), construed as a response to Defendant’s motion, is
DENIED as moot.
IT IS SO ORDERED.
DATED: November 21, 2017
____________________________
NANCY J. ROSENSTENGEL
United States District Judge

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