Mayer v. Norfolk Southern Corporation

Filing 9

OPINION AND ORDER: Defendant is ORDERED to supplement the record by filing an Amended Notice of Removal on or before 3/19/2012 properly alleging on personal knowledge the citizenship of Plaintiff Phillip Mayer. Signed by Magistrate Judge Roger B Cosbey on 3/5/2012. (kjm)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
PHILLIP J. MAYER,
Plaintiff,
v.
NORFOLK SOUTHERN CORPORATION
d/b/a NORFOLK SOUTHERN RAILROAD,
Defendant.

)
)
)
)
)
)
)
)
)
)

CAUSE NO. 1:12-CV-74

OPINION AND ORDER
This case was removed to this Court from the DeKalb County Superior Court by the
Defendant based on diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). (Docket # 2.) The
Notice of Removal alleges that “[u]pon Norfolk Southern’s information and belief, at the time
Plaintiff’s Complaint was filed, Plaintiff was, and still is, a resident of DeKalb County, Indiana.
Therefore, Plaintiff is a citizen of the State of Indiana.” (Notice of Removal ¶ 4.)
Defendant’s Notice of Removal, however, is inadequate for two reasons. First, it is wellsettled that “[a]llegations of federal subject matter jurisdiction may not be made on the basis of
information and belief, only personal knowledge.” Yount v. Shashek, No. Civ. 06-753-GPM,
2006 WL 4017975, at *10 n.1 (S.D. Ill. Dec. 7, 2006) (citing Am.’s Best Inns, Inc. v. Best Inns of
Abilene, L.P., 980 F.2d 1072, 1074 (7th Cir. 1992)); Ferolie Corp. v. Advantage Sales & Mktg.,
LLC, No. 04 C 5425, 2004 WL 2433114, at *1 (N.D. Ill. Oct. 28, 2004); Hayes v. Bass Pro
Outdoor World, LLC, No. 02 C 9106, 2003 WL 187411, at *2 (N.D. Ill. Jan. 21, 2003); Multi-M
Int’l, Inc. v. Paige Med. Supply Co., Inc., 142 F.R.D. 150, 152 (N.D. Ill. 1992). Consequently,

1

Defendant must amend its Notice of Removal to allege the Plaintiff’s citizenship on personal
knowledge rather than on information and belief.
The Notice of Removal is also insufficient because the “residency” of each party is
meaningless for purposes of diversity jurisdiction, as “citizenship is what matters.” 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. “It is well-settled that when the parties allege residence
but not citizenship, the court must dismiss the suit.” Held v. Held, 137 F.3d 998, 1000 (7th Cir.
1998) (internal quotation marks and citation omitted); see generally Smoot v. Mazda Motors of
Am., Inc., 469 F.3d 675, 677-78 (7th Cir. 2006). Therefore, as citizenship does not necessarily
equate with residence, Dahlstrom v. Simon, No. 00 C 5189, 2000 WL 1231391, at *1 (N.D. Ill.
Aug. 28, 2000), alleging that the Plaintiff is a citizen of the State of Indiana simply because he is
a resident of Indiana is insufficient.
Therefore, the Court must be advised of each party’s citizenship, not residency. As to
Plaintiff Phillip Mayer, “[f]or natural persons, state citizenship is determined by one’s domicile.”
Dausch v. Rykse, 9 F.3d 1244, 1245 (7th Cir. 1993); see also Heinen v. Northrop Grumman
Corp., __ F.3d __, 2012 WL 372988, at *1 (7th Cir. Feb. 7, 2012) (“But residence may or may
not demonstrate citizenship, which depends on domicile—that is to say, the state in which a
person intends to live over the long run.”); Am.’s Best Inns, Inc., 980 F.2d at 1074 (“In federal
law citizenship means domicile, not residence.”).
Therefore, Defendant is ORDERED to supplement the record by filing an Amended
Notice of Removal on or before March 19, 2012, properly alleging on personal knowledge the

2

citizenship of Plaintiff Phillip Mayer.
SO ORDERED.
Enter for this 5th day of March, 2012.
/S/ Roger B. Cosbey
Roger B. Cosbey,
United States Magistrate Judge

3