Janero v. Norfolk Southern Railway Company et al

Filing 8

OPINION AND ORDER re 2 NOTICE OF REMOVAL filed by Norfolk Southern Railway Company, CSX Transportation Inc. Defendants ORDERED to file by 5/28/2013 an Amended Notice of Removal as outlined in this Opinion and Order. Signed by Magistrate Judge Roger B Cosbey on 5/13/13. (cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
THOMAS A. JANERO, Individually and as
Personal Representative of the Estates of
KRISTEN M. JANERO and XANDER D.
JANERO,

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Plaintiff,
v.
NORFOLK SOUTHERN RAILWAY
COMPANY and CSX TRANSPORTATION,
INC.,
Defendants.

CAUSE NO. 1:13-CV-155

OPINION AND ORDER
This case was removed to this Court from the Blackford Superior Court by Defendants
based on diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). (Docket # 2.) The Notice of
Removal alleges that “[u]pon information and belief,” Plaintiff seeks to recover more than
$75,000, exclusive of interests and costs, and that “[u]pon information and belief, Plaintiff,
Thomas A. Janero, is a citizen of Indiana.” (Notice of Removal ¶¶ 3-4.)
Defendants’ 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
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Int’l, Inc. v. Paige Med. Supply Co., 142 F.R.D. 150, 152 (N.D. Ill. 1992). Consequently,
Defendants must amend their Notice of Removal to allege both the amount in controversy and
Plaintiff Thomas Janero’s citizenship on personal knowledge rather than information and belief.
The Notice of Removal is further inadequate because Thomas Janero is not only suing on
his own behalf, but also as the personal representative of the estates of his wife, Kristen M.
Janero, and his son, Xander D. Janero, both of whom are deceased. Because Thomas is also
suing as the personal representative of Kristen’s and Xander’s estates, it is their citizenship, as
the decedents, that governs for purposes of diversity jurisdiction over their claims. See 28
U.S.C. § 1332(c)(2) (stating that “the legal representative of the estate of a decedent shall be
deemed to be a citizen only of the same State as the decedent”); Gustafson v. zumBrunnen, 546
F.3d 398, 400-01 (7th Cir. 2008) (noting that the federal diversity statute treats the legal
representative of a decedent’s estate as a citizen of the same state as the decedent). The Notice
of Removal, however, makes no allegations concerning the citizenship of Kristen Janero or
Xander Janero.
Therefore, Defendants are ORDERED to supplement the record by filing an Amended
Notice of Removal on or before May 28, 2013, properly alleging on personal knowledge the
amount in controversy and the citizenship of Thomas A. Janero, Kristen M. Janero, and Xander
D. Janero.
SO ORDERED.
Enter for this 13th day of May, 2013.
/S/ Roger B. Cosbey
Roger B. Cosbey,
United States Magistrate Judge

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