Brown v. Weigel Broadcasting et al

Filing 29

OPINION AND ORDER granting 15 Motion to Dismiss; granting 25 Motion to Dismiss: Clerk is ORDERED to DISMISS the case WITHOUT PREJUDICE. Signed by Judge Rudy Lozano on 4/23/15. (mc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
STEVEN BROWN,
Plaintiff,
vs.
WEIGEL BROADCASTING, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

CAUSE NO. 2:14-CV-469

OPINION AND ORDER
This matter is before the Court on: (1) Defendant Red Wing
Shoe Company and Joseph Faeck’s Motion to Dismiss, filed on March
5, 2015 (DE #15); and (2) Defendant Weigel Broadcasting, Inc’s
Motion to Dismiss filed on March 31, 2015 (DE #25).
reasons set forth below, the motions are GRANTED.

For the

The Clerk is

ORDERED to DISMISS the case WITHOUT PREJUDICE.

BACKGROUND
On December 29, 2014, Steven Brown, through his Attorney,
George M. Petrich, filed a complaint against Weigel Broadcasting,
Red Wing Shoe Company, Inc., and Joseph Faecke.

The complaint

alleges a state law claim for conversion and asserts that the Court
has subject matter jurisdiction pursuant to 28 U.S.C.A. § 1332.
The civil cover sheet submitted with the complaint identifies the
Plaintiff, Steven Brown, as a citizen of Indiana and further

indicates that he resides in Lake County, Indiana.

The complaint

asserts that Weigel Broadcasting is an Indiana Corporation, and
that Red Wing Shoe Company, Inc. is a foreign corporation.
Defendants have moved to dismiss the complaint for lack of
subject matter jurisdiction.
motions

on

April

17,

2015,

Plaintiff filed responses to the
and

the

matter

is

now

ripe

for

adjudication.

DISCUSSION
Pursuant to Federal Rule of Civil Procedure 12(b)(1), a
defendant may move to dismiss claims over which the federal court
lacks subject matter jurisdiction.

Jurisdiction is the "power to

decide" and must be conferred upon a federal court.

In re Chicago,

Rock Island & Pac. R.R. Co., 794 F.2d 1182, 1188 (7th Cir. 1986).
When jurisdictional allegations are questioned, the plaintiff has
the burden of proving that the jurisdiction requirements have been
met.

Kontos v. United States Dep't of Labor, 826 F.2d 573, 576

(7th Cir. 1987).

In reviewing a Rule 12(b)(1) motion to dismiss,

the Court may look beyond the complaint and review any extraneous
evidence submitted by the parties to determine whether subject
matter jurisdiction exists.

United Transp. Union v. Gateway

Western R.R. Co., 78 F.3d 1208, 1210 (7th Cir. 1996).
Under 28 U.S.C. § 1332(a)(1), a federal district court has
“original jurisdiction of all civil actions where the matter in

2

controversy exceeds the sum or value of $75,000, exclusive of
interest and costs, and is between citizens of different States.”
(emphasis added). When a district court’s jurisdiction is based on
28 U.S.C. § 1332, there must be complete diversity between the
opposing parties.

Schur v. L.A. Weight Loss Centers, Inc., 577

F.3d 752, 758 (7th Cir. 2009).

In other words, the citizenship of

each plaintiff must be diverse from the citizenship of each
defendant.

Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996).

As a general rule, when the court has jurisdiction under 28
U.S.C. § 1332, complete diversity must be established at the
beginning of the action and subsequent events do not affect the
court’s diversity jurisdiction.

Johnson v. Wattenbarger, 361 F.3d

991, 993 (7th Cir. 2004). However, if an amended pleading is filed
by a party, the original pleading is irrelevant and the amended
pleading controls the court’s jurisdictional analysis. See Wellness
Cmty.-Nat'l v. Wellness House, 70 F.3d 46, 49 (7th Cir. 1995)
(explaining that the plaintiff’s first amended complaint controlled
the court’s jurisdictional inquiry, not the original complaint).
In light of the principles discussed above, the present case
must be dismissed in its entirety for lack of subject matter
jurisdiction.

Plaintiff’s response notes that “Plaintiff and two

defendants are citizens of Indiana, but the third defendant, Red
Wing Shoe Company, Inc., is a foreign corporation, Minnesota.” (DE
#27 at 1; DE #28).

Additionally, Defendant Joseph Faecke has

3

submitted an affidavit demonstrating that he is both a citizen and
resident of Indiana.

Accordingly, there is not complete diversity

of citizenship.
Plaintiff responds to the motions to dismiss by noting that:
Case law cited in the motion to dismiss misses
the point. The issue is “complete” diversity
and/or
“balanced”
diversity
(I
guess).
Interpleader
actions
permit
unbalanced
diversity, the federal courts being available
to insurance companies. Plaintiff would ask
this court to accord him his day in court
here, in Hammond, in this commodious building,
this edifice adjacent to Russell St., where
the Lake County court has a courtroom where
counsel for plaintiff may not tread, being
sans portfolio. What if plaintiff joined two
more Minnesota entities, creating three
parties form Indiana and three from Minnesota?
Would that be ”complete” and/or “balanced”
diversity? Would the scales of justice be in
balance?
Amended complaint would add “John
Doe and Jane Doe, residents of Minnesota and
agents of Red Wing Shoe Company, acting
individually to exploit plaintiff that our
employer be unjustly enriched, its good
fortune inuring to our benefit by a raise in
salary or a bonus.
(DE #27).

Plaintiff then asks this Court to hold off ruling on the

instant motions and allow him to amend his complaint accordingly,
and notes that “[a] concomitant benefit of a refusal to dismiss is
continued employment by your humble scrivener.”

(Id.).

First, Plaintiff failed to file a separate motion to amend his
complaint.

N.D. Ind. L.R. 7-1 provides that motions must be filed

separately.

4

Second, Plaintiff cites no caselaw in his response and takes
a position that appears utterly meritless.

Complete diversity is

required, he has conceded that it does not exist, and his assertion
that “balanced” diversity will suffice is offered without any
citation to legal authority whatsoever.
Lastly,

even

if

Plaintiff

had

filed

a

motion

to

amend

separately as required by this Court’s local rules, the amendment
he proposes does nothing to solve the jurisdictional problem raised
by the instant motions to dismiss. There is not complete diversity
between the plaintiff and the defendants and adding two more
defendants from Minnesota does not fix the problem.

Accordingly,

the proposed amendment to the complaint would be futile.
This Court is not certain what counsel is referencing when he
says he “may not tread” in a Lake County court and regrets that,
for reasons unclear to this Court, this ruling may render him
unable to continue his employment on behalf of Plaintiff, but those
considerations have no place in this Court’s determination of
whether subject matter jurisdiction is present.

CONCLUSION
For the reasons set forth above, the Defendants’ motions to
dismiss (DE ## 15, 25) are GRANTED.

The Clerk is ORDERED to

DISMISS the case WITHOUT PREJUDICE.

DATED: April 23, 2015

/s/ RUDY LOZANO, Judge
United States District Court

5