Newby v. Taco Bell of America Inc et al
Filing
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OPINION AND ORDER - Plaintiff is ORDERED to file a Third Amended Complaint on or before 1/5/2012 properly alleging the state citizenship of Plaintiff Virgil Newby. Signed by Magistrate Judge Roger B Cosbey on 12/29/2011. (kjm)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
VIRGIL NEWBY, Individually and as Special
Administrator of the ESTATE OF ALICIA
NEWBY,
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Plaintiff,
v.
TACO BELL OF AMERICA, INC. and
YUM! BRANDS, INC.,
Defendants.
CAUSE NO. 1:11-CV-411
OPINION AND ORDER
This case was filed in this Court on December 7, 2011, based on diversity jurisdiction
pursuant to 28 U.S.C. § 1332(a). (Docket # 1.) Plaintiff filed his Second Amended Complaint
on December 28, 2011. (Docket # 11.) The Second Amended Complaint alleges that “Plaintiff,
Virgil Newby, is a natural born citizen of the United States, and the surviving lawful husband of
Alicia Newby, now deceased, and presently resides in Peru, Indiana.” (Second Am. Compl. ¶ 1.)
The Second Amended Complaint, however, is still inadequate as regards the citizenship
of the Plaintiff, Virgil Newby. Rather than alleging the residency of Virgil Newby, the
complaint must allege his citizenship. See Guar. Nat’l Title Co. v. J.E.G. Assocs., 101 F.3d 57,
58-59 (7th Cir. 1996) (explaining that statements concerning a party’s “residency” are not proper
allegations of citizenship as required by 28 U.S.C. § 1332); see 28 U.S.C. § 1332. Furthermore,
instead of alleging the national citizenship of Virgil Newby, the Court must be advised of
Virgil’s state citizenship. See 28 U.S.C. § 1332 (giving district courts original jurisdiction in
controversies between citizens of different States). “For natural persons, state citizenship is
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determined by one’s domicile.” Dausch v. Rykse, 9 F.3d 1244, 1245 (7th Cir. 1993); see also
Am.’s Best Inns, Inc. v. Best Inns of Abilene, L.P., 980 F.2d 1072, 1074 (7th Cir. 1992) (“In
federal law citizenship means domicile, not residence.”).
Therefore, Plaintiff is ORDERED to file a Third Amended Complaint on or before
January 5, 2012, properly alleging the state citizenship of Plaintiff Virgil Newby.
SO ORDERED.
Enter for this 29th day of December, 2011.
/S/ Roger B. Cosbey
Roger B. Cosbey,
United States Magistrate Judge
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