McKinley v. Franck's Lab et al

Filing 5

OPINION AND ORDER: Plas to supplement the record by filing an Amended Complaint on/bf 3/19/2013, properly alleging the citizenship of Pla Dixie McKinley, Dft Paul W Franck, Dft Anthony James Campbell and Dft Wells Pharmacy Network LLC. Signed by Magistrate Judge Roger B Cosbey on 3/5/2013. (lns)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
ELDON WAYNE MCKINLEY and
DIXIE MCKINLEY,

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Plaintiffs,
v.
FRANCK’S LAB, INC., Individually and
d/b/a Franck’s Compounding Lab and/or
Franck’s Pharmacy, Inc.; WELLS
PHARMACY NETWORK, L.L.C.;
PAUL W. FRANCK, R.Ph.; and
ANTHONY JAMES CAMPBELL, R.Ph.,
Defendants.

CAUSE NO. 1:13-CV-60

OPINION AND ORDER
This case was filed in this Court on March 4, 2013, based on diversity jurisdiction
pursuant to 28 U.S.C. § 1332(a). (Docket # 1.) The Complaint alleges that “Plaintiff Dixie
McKinley is the wife of, and resides with, Eldon Wayne McKinley”; that Defendant Paul W.
Franck was a principal and shareholder of Franck’s Lab, Inc., and a licensed pharmacist in
Florida; and that Defendant Anthony James Campbell was a lead chemist with Franck’s Lab, Inc.
(Compl. ¶¶ 3, 6-7.) The Complaint further states that “Defendant Wells Pharmacy Network,
L.L.C., is a Florida limited liability corporation, not registered but doing business in the State of
Indiana . . . .” (Compl. ¶ 5.)
The Complaint, however, is inadequate for several reasons. First, as to Plaintiff Dixie
McKinley, “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
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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). As such,
alleging that Plaintiff Dixie McKinley “is the wife of, and resides with, Eldon Wayne McKinley”
is insufficient to establish her citizenship. (Compl. ¶ 3 (emphasis added).)
Rather, “[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., 671
F.3d 669, 670 (7th Cir. 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. v. Best Inns of Abilene, L.P., 980 F.2d 1072, 1074 (7th Cir. 1992)
(“In federal law citizenship means domicile, not residence.”). Therefore, the Court must be
advised of Dixie McKinley’s domicile, rather than her residence, as the former determines her
citizenship.
Moreover, regarding Defendants Paul Franck and Anthony Campbell, the Complaint
contains no allegations concerning their citizenship. As such, the Court must also be advised of
their citizenship, which, as individuals, is determined by their domicile. Dausch, 9 F.3d at 1245.
As to Defendant Wells Pharmacy Network, L.L.C., a limited liability company’s
citizenship “for purposes of . . . diversity jurisdiction is the citizenship of its members.”
Cosgrove v. Bartolotta, 150 F.3d 729, 731 (7th Cir. 1998). Therefore, the Court must be advised
of the citizenship of all the members of Wells Pharmacy Network, L.L.C. to ensure that none of
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its members share a common citizenship with Plaintiffs. Hicklin Eng’g, L.C. v. Bartell, 439 F.3d
346, 347 (7th Cir. 2006). Moreover, citizenship must be “traced through multiple levels” for
those members of Wells Network Pharmacy, L.L.C. who are a partnership or a limited liability
company, as anything less can result in a dismissal or remand for want of jurisdiction. Mut.
Assignment & Indem. Co. v. Lind-Waldock & Co., LLC, 364 F.3d 858, 861 (7th Cir. 2004).
Therefore, Plaintiffs are ORDERED to supplement the record by filing an Amended
Complaint on or before March 19, 2013, properly alleging the citizenship of Plaintiff Dixie
McKinley, Defendant Paul W. Franck, Defendant Anthony James Campbell, and Defendant
Wells Pharmacy Network, L.L.C.
SO ORDERED.
Enter for this 5th day of March, 2013.
/S/ Roger B. Cosbey
Roger B. Cosbey,
United States Magistrate Judge

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