Hajicek v. Werner Enterprises Inc et al

Filing 45

OPINION AND ORDER: The Court ORDERS Plaintiff to file a legal brief by 11/3/17 addressing the jurisdiction and venue issues outlined in the Order. Defendant Polk may file a brief in response by 11/24/17. Signed by Magistrate Judge Michael G Gotsch, Sr on 10/19/17. (Copy mailed to pro se party)(nal)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION

DEBRA HAJICEK as Personal
Representative of the Estate of Ronald Ruiz,
Deceased,
Plaintiff,
v.
WERNER ENTERPRISES, et al.,
Defendants.

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CAUSE NO. 3:16-CV-826-JD-MGG

OPINION AND ORDER
This matter is before the Court sua sponte. On November 9, 2016, Plaintiff, Debra
Hajicek as the Personal Representative of the Estate of Ronald Ruiz, Deceased, filed a Complaint
in St. Joseph County Circuit Court against Defendants, Werner Enterprises, Inc. (“Werner”) and
Stanley Polk. On December 2016, Werner filed a Notice of Removal alleging subject matter
jurisdiction conferred by diversity of citizenship under 28 U.S.C. § 1332. On February 9, 2017,
Plaintiff filed her First Amended Complaint against both Werner and Polk. However, on May
31, 2017, this Court granted Plaintiff’s motion for voluntary dismissal of Werner leaving Stanley
Polk, proceeding pro se, as the only defendant in this action.
Review of Werner’s Notice of Removal and Plaintiff’s operative First Amended
Complaint reveals jurisdictional issues that must be addressed, including the remaining parties’
diversity of citizenship, the Court’s authority to exercise personal jurisdiction over Defendant
Polk, and the proper venue for this case.

I.

RELEVANT BACKGROUND
This case arises following the death of Ronald Ruiz, a truck driver employed by non-

party Drivers Management, LLC (“Drivers”). Defendant Werner retained Drivers to train its
employee—Defendant Polk—as a truck driver. Drivers appointed Ruiz as Polk’s trainer. As
part of Polk’s training, Ruiz and Polk ended up on an interstate highway in Bell County, Texas
south of Salado on August 27, 2015. Late that night, Polk stabbed Ruiz who died from his
injuries. Polk is now incarcerated in Bell County, Texas as the result of his criminal conviction
related to the events of August 27, 2015.
In its Notice of Removal, Werner alleged “upon information and belief” that Ruiz, the
decedent, “was a resident and citizen of the State of Indiana at the time of the incident.” 1 [DE 1
at 1, ¶ 2]. Werner further asserted that complete diversity exists based on Ruiz’s citizenship in
Indiana, Werner’s citizenship in Nebraska, and Polk’s citizenship in Nevada. In her First
Amended Complaint, Plaintiff does not explicitly allege complete diversity. However, Plaintiff
notes that Ruiz “was a resident of St. Joseph County, Indiana” [DE 16 at 1, ¶ 1]; Werner “was a
Nebraska corporation doing business in Indiana” ‘DE 16 at 1, ¶ 3]; and Polk “was a resident of
Las Vegas, Nevada” [DE 16 at 1, ¶ 4].
II.

DIVERSITY OF CITIZENSHIP
“The existence of federal subject matter jurisdiction in a case removed from state court

must be assessed as of the time of removal.” In re Fedex Ground Package Sys., Inc.
Employment Practices Litig., No. 3:05-MD-527RM, 2010 WL 583915, at *2 (N.D. Ind. Feb. 11,
2010) (citing Oshana v. Coca-Cola Co., 472 F.3d 506, 510–511 (7th Cir.2006)). “[T]he party

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Under 28 U.S.C. § 1332(c)(2), “the legal representative of the estate of a decedent shall be deemed to be a citizen
only of the same State as the decedent.” Therefore, Ruiz’s citizenship rather than his Personal Representative
Hajicek’s determines the relevant citizenship of Plaintiff in this case.

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invoking federal jurisdiction bears the burden of demonstrating its existence.” Hart v. FedEx
Ground Package System Inc., 457 F.3d 675, 679 (7th Cir. 2006) (citing Steel Co. v. Citizens for a
Better Env’t, 523 U.S. 83, 104 (1998)).
Here, Werner’s Notice of Removal is inadequate for purposes of establishing diversity
jurisdiction. While Werner adequately alleged the citizenship of itself and Polk, its allegation of
Ruiz’s citizenship “upon information and belief” is insufficient to establish jurisdiction.
“Allegations 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)). 2
II.

PERSONAL JURISDICTION OVER DEFENDANT POLK
“In order for a district court to bind an individual, the court must have personal

jurisdiction over that individual.” Brook v. McCormley, —F.3d—, —, 2017 WL 4531687, at *1
(7th Cir. Oct. 11, 2017) (citing Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456
U.S. 694, 701 (1982)). “The plaintiff bears the burden of establishing personal jurisdiction.” Id.
(citing Cent. States, Se. & Sw. Areas Pension Fund v. Reimer Express World Corp., 230 F.3d
934, 939 (7th Cir. 2000)).

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The Court notes that the “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 Cir. 1996); see also
28 U.S.C. § 1332(a). “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 also Smoot v. Mazda Motors of Am., Inc., 469 F.3d 675, 677–78 (7th Cir. 2006). Therefore, the Court must be
advised of each party’s citizenship, not residency. “For natural persons, state citizenship is determined by one’s
domicile.” Dausch v. Rykse, 9 F.3d 1244, 1245 (7th Cir. 1993) (collecting cases); 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.”).

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A federal district court may exercise personal jurisdiction over a defendant if a court of
general jurisdiction of the state in which it sits would have such jurisdiction. Fed. R. Civ. P.
4(k)(1)(A). This Court, sitting in Indiana, turns to the Indiana Rules of Trial Procedure, which
provide for personal jurisdiction “on any basis not inconsistent with the Constitutions of this
state or the United States.” Ind. R. Tr. P. 4.4(A). Thus, Indiana permits the exercise of personal
jurisdiction to the full extent permitted by the Due Process clause of the United States
Constitution. See LinkAmerica Corp. v. Albert, 857 N.E.2d 961, 967 (Ind. 2006).
To exercise personal jurisdiction over a defendant under the Due Process clause, the
defendant must have “certain minimum contacts with [Indiana] such that the maintenance of the
suit does not offend ‘traditional notions of fair play and substantial justice.’” Int’l Shoe Co. v.
Wash., 326 U.S. 310, 316 (1946) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). The
defendant “should reasonably anticipate being haled into court [in Indiana],” World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980), if he “purposefully avails [himself] of
the privilege of conducting activities within [the state],” Hanson v. Denckla, 357 U.S. 235, 253
(1958). The two forms of personal jurisdiction that a court may exercise over a non-resident
defendant are “specific” and “general” jurisdiction. See Helicopteros Nacionales de Colombia,
S.A. v. Hall, 466 U.S. 408 (1984).
“A defendant is subject to general jurisdiction when it has ‘continuous and systematic
general business contacts’ with the forum state.” uBID, Inc. v. GoDaddy Group, Inc., 623 F.3d
421, 425–26 (7th Cir. 2010) (citing Helicopteros, 466 U.S. at 415–16). In this case, the exercise
of general jurisdiction would be appropriate if Polk’s contacts with Indiana were “so extensive to
be tantamount to [Polk] being constructively present in the state to such a degree that it would be
fundamentally fair to require [him] to answer in an Indiana court in any litigation arising out of

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any transaction or occurrence taking place anywhere in the world.” Purdue Research Found. v.
Sanofi-Synthelabo, S.A., 338 F.3d 773, 787 (7th Cir. 2003). Plaintiff has not demonstrated that
Polk lives or ever worked in the State of Indiana. In addition, Plaintiff has not offered any facts
to make a prima facie case of substantial, continuous, and systematic contacts by Polk with the
State of Indiana.
Similarly, Plaintiff has failed to establish specific jurisdiction over Polk in this Court.
Specific jurisdiction is appropriate when the basis for the lawsuit “arises out of or is related to”
the defendant’s contacts with the forum state. Jennings v. AC Hydraulic A/S, 383 F.3d 546, 549
(7th Cir. 2004). According to Plaintiff’s Amended Complaint, Polk’s only contact with the State
of Indiana was his interaction with Indiana resident, Ruiz. However, Plaintiff alleges that all of
that interaction occurred in Texas. Without adequate allegations of either general or specific
jurisdiction, Plaintiff’s Amended Complaint fails to establish personal jurisdiction over Polk.
IV.

VENUE
Even if it can be determined that this Court retains both subject matter and personal

jurisdiction to hear this case, the Notice of Removal and Amended Complaint do not allege facts
sufficient to determine whether venue is proper in this case.
Generally, “[a] civil action may be brought in—(1) a judicial district in which any
defendant resides, if all defendants are residents of the State in which the district is located; (2) a
judicial district in which a substantial part of the events or omissions giving rise to the claim
occurred, or a substantial part of property that is the subject of the action is situated; or (3) if
there is no district in which an action may otherwise be brought as provided in this section, any
judicial district in which any defendant is subject to the court’s personal jurisdiction with respect
to such action. 28 U.S.C. § 1391(b). Venue in this case cannot be based upon subsection (1)

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because none of the defendants are residents of Indiana, the state in which this district court is
located. However, venue appears to be proper in the United States District Court for the Western
District of Texas under subsection (2) because the events giving rise to this action occurred in
that district. In light of the likely applicability of subsection (2), venue probably need not be
determined by subsection (3)’s personal jurisdiction criterion. Regardless, the record in this case
does not seem to support venue here in the Northern District of Indiana.
With that said, defendants may explicitly consent, and waive any objections, to venue in
a judicial district in which venue would otherwise be improper under 28 U.S.C. 1391(b). De La
Fuente v. I.C.C., 451 F. Supp. 867, 870 (N.D. Ill.1978). Indeed, “questions of venue, as distinct
from matters of jurisdiction, relate ‘(solely) to the convenience of litigants and as such is subject
to their disposition.’” Nat’l Acceptance Co. of Am. v. Wechsler, 489 F. Supp. 642, 649 (N.D. Ill.
1980) (quoting Neirbo v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 168 (1939)). Nothing in
the record reflects any such consent or waiver by Defendant Polk leaving open the question of
whether venue is proper in this judicial district.
V.

CONCLUSION
As discussed above, Werner’s Notice of Removal fails to adequately allege the

citizenship of the decedent, Ronald Ruiz, raising the question of whether this Court retains
subject matter jurisdiction over Plaintiff’s wrongful death action set forth in her First Amended
Complaint. In addition, Plaintiff has failed to establish personal jurisdiction over Defendant Polk
in this judicial district. Similarly, the record does not adequately support venue in this judicial
district. To ensure that this Court retains jurisdiction over Plaintiff’s claim, supplementation of
the record is required.

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This matter is complicated by two factors: (1) Defendant Werner, who filed the Notice of
Removal and therefore had the burden to establish subject matter jurisdiction, is no longer a
party to this case; and (2) Defendant Polk is incarcerated in the Western District of Texas and is
proceeding in this action without the benefit of representation by counsel. With these factors in
mind and in the interest of justice, the Court ORDERS Plaintiff to file a legal brief by
November 3, 2017, addressing the jurisdiction and venue issues outlined above including: (1)
the citizenship of the decedent, Ronald Ruiz; (2) this Court’s personal jurisdiction over
Defendant Polk; and (3) proper venue in this judicial district or transfer to another district such as
the Western District of Texas or possibly the District of Nevada. Defendant Polk may file a brief
in response by November 24, 2017. Upon receipt of both briefs, the Court will determine
whether jurisdiction is proper in this judicial district; whether remand to the St. Joseph County
Circuit Court is warranted; or whether this case should be transferred to another judicial district.
SO ORDERED.
Dated this 19th day of October 2017.
s/Michael G. Gotsch, Sr.
Michael G. Gotsch, Sr.
United States Magistrate Judge

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