Fowler et al v. New Werner Co et al

Filing 10

OPINION AND ORDER re 4 AMENDED COMPLAINT filed by Plaintiffs Jerry J Fowler, Michele Fowler. Plaintiffs ORDERED to supplement the record by filing a Second Amended Complaint by 6/7/2013. Signed by Magistrate Judge Roger B Cosbey on 5/24/13. (cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
JERRY J. FOWLER and
MICHELE FOWLER,

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Plaintiffs,
v.
NEW WERNER CO. d/b/a Werner Co., a
Delaware corporation; NEW WERNER
HOLDING CO. (DE), LLC d/b/a Werner
Holding Co.; LOWE’S COMPANIES, INC.,
a North Carolina corporation; and LOWE’S
HOME CENTERS, INC., a North Carolina
corporation;
Defendants.

CAUSE NO. 1:13-CV-126

OPINION AND ORDER
This case was filed in this Court on April 22, 2013, based on diversity jurisdiction
pursuant to 28 U.S.C. § 1332(a). (Docket # 1.) Upon reviewing the original complaint, the
Court found the allegations of Defendant New Werner Holding Co. (DE), LLC’s (“Werner
Holding”) citizenship inadequate to establish diversity jurisdiction because Plaintiffs did not
allege the citizenship of Werner Holding’s members, which determines Werner Holding’s
citizenship. (Docket # 3); see Cosgrove v. Bartolotta, 150 F.3d 729, 731 (7th Cir. 1998) (noting
that “the citizenship of an LLC for purposes of [ ] diversity jurisdiction is the citizenship of its
members”). As such, Plaintiffs were directed to file an amended complaint within twenty days
(Docket # 3), which they subsequently did (Docket # 4). The Amended Complaint alleges that
“[u]pon information and belief, no member of Werner Holding is a citizen of Indiana. Upon
information and belief, the members of Werner Holding are citizens of New York, Illinois,
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Delaware, Connecticut, and/or the United Kingdom.” (Am. Compl. ¶ 4.)
The Amended Complaint, however, is still insufficient to establish Werner Holding’s
citizenship because it is well-settled 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., 142 F.R.D. 150, 152 (N.D. Ill.
1992). Consequently, Plaintiffs must amend their complaint to allege the citizenship of Werner
Holding’s members on personal knowledge rather than information and belief. And, rather than
merely alleging that none of Werner Holding’s members are Indiana citizens, and then alleging
what those members’ citizenships are without identifying them, Plaintiffs should affirmatively
allege who Werner Holding’s members are and what their citizenship is.
Therefore, Plaintiffs are ORDERED to supplement the record by filing a Second
Amended Complaint on or before June 7, 2013, properly alleging on personal knowledge the
members of Defendant New Werner Holding Co. (DE), LLC and their citizenship.
SO ORDERED.
Enter for this 24th day of May, 2013.
/S/ Roger B. Cosbey
Roger B. Cosbey,
United States Magistrate Judge

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