Gallagher v. Pajevic

Filing 31

OPINION AND ORDER: The Court, sua sponte, ORDERS Plaintiff to FILE, on or before 11/9/2017, a supplemental jurisdictional statement that alleges the domicile of Plaintiff and Defendant and presents evidence providing competent proof of the parties' domiciles and of an amount of controversy over $75,000. Signed by Magistrate Judge Paul R Cherry on 10/26/2017. (Copy mailed to pro se parties)(jss)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
ROBERT GALLAGHER,
Plaintiff,
v.
NADA PAJEVIC,
Defendant.

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CAUSE NO.: 2:15-CV-410-RL-PRC

OPINION AND ORDER
This matter is before the Court sua sponte. The Court must continuously police its subject
matter jurisdiction. Hay v. Ind. State Bd. of Tax Comm’rs, 312 F.3d 876, 879 (7th Cir. 2002). The
Court must dismiss this action if the Court lacks subject matter jurisdiction. Fed. R. Civ. P. 12(h)(3).
Currently, the Court is unable to determine if it has subject matter jurisdiction over this litigation.
Plaintiff Robert Gallagher invoked this Court’s subject matter jurisdiction via diversity
jurisdiction by filing this litigation in federal court. As the party seeking federal jurisdiction, Plaintiff
has the burden of establishing that subject matter jurisdiction exists. Smart v. Local 702 Int’l Bhd.
of Elec. Workers, 562 F.3d 798, 802-03 (7th Cir. 2009).
For the Court to have diversity jurisdiction, Plaintiff and Defendant Nada Pajevic must be
citizens of different states, and the amount in controversy must be more than $75,000. Citizenship
is determined by domicile, not by residence. Dakuras v. Edwards, 312 F.3d 256, 258 (7th Cir. 2002);
see Heinen v. Northrop Grumman Corp., 671 F.3d 669, 670 (7th Cir. 2012) (“[R]esidence 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.”); Guar. Nat’l Title Co., Inc. 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).

“For adults, domicile is established by physical presence in a place in connection with a
certain state of mind concerning one’s intent to remain there.” Mississippi Band of Choctaw Indians
v. Holyfield, 490 U.S. 30, 48 (1989). The Amended Complaint alleges only that Plaintiff “is a long
time resident of Indiana and natural born citizen of the United States of America” and that
Defendant “is a long time resident of Illinois.” (Am. Compl. ¶ 1, ECF No. 4). Plaintiff also alleges
that, at times, he stayed in Defendant’s house in Illinois. Id. at ¶ 2. Plaintiff’s allegations of his and
Defendant’s residencies is insufficient.
Plaintiff must properly allege the state of citizenship of himself and of Defendant. In other
words, Plaintiff must allege where both parties are domiciled, not where they reside. Further,
Plaintiff must support these allegations with “competent proof,” that is, evidence proving “to a
reasonable probability that jurisdiction exists.” Chase v. Shop ‘N Save Warehouse Foods, Inc., 110
F.3d 424, 427 (7th Cir. 1997). Competent proof is also needed to support Plaintiff’s allegation that
the amount in controversy in this litigation is in excess of $75,000.
Therefore, the Court ORDERS Plaintiff to FILE, on or before November 9, 2017, a
supplemental jurisdictional statement that properly alleges the domicile of Plaintiff and Defendant
and presents evidence providing competent proof of the parties’ domiciles and of an amount in
controversy over $75,000.
SO ORDERED this 26th day of October, 2017.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT
cc:

Plaintiff Robert Gallagher, pro se
Defendant Nada Pajevic, pro se

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