WAGNER et al v. MIZUHO ORTHOPEDIC SYSTEMS, INC.

Filing 79

REPORT AND RECOMMENDATION re 77 ORDER TO SHOW CAUSE. Signed by Magistrate Judge Mark J. Dinsmore on 6/15/2012. (TMA)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

JANE E. WAGNER, and
ROBERT A. WAGNER,
Plaintiffs,
vs.
MIZUHO ORTHEPEDIC
SYSTEMS, INC.
Defendants.

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NO. 1:11-cv-00433-TWP-MJD

Report & Recommendation
Because the Court had concerns regarding its subject matter jurisdiction over this matter, on May
10, 2012, the Court issued an Order to Show Cause (“OSC”) requiring Plaintiffs Jane and Robert Wagner
to file a statement that provided their citizenship and the citizenship of recently added Defendant
Anonymous Hospital. [Dkt. 71.] In the statement of citizenship filed in response to the Court’s OSC,
Plaintiffs alleged that both Jane and Robert Wagner are citizens of the State of Indiana. [Dkt. 72.]
Plaintiffs also alleged that Defendant Anonymous Hospital is an Indiana corporation with its principal
place of business in Indianapolis, Indiana and therefore, is a citizen of the State of Indiana. Defendants
do not dispute these allegations.
As a result of Plaintiffs’ statement of citizenship, the Court issued another OSC on May 23, 2012,
requiring the parties to show cause as to why this matter should not be remanded for lack of subject
matter jurisdiction. In the May 23, 2012 OSC, the Court stated the following:

For the Court to have diversity jurisdiction under 28 U.S.C. § 1332, complete
diversity must exist, which means that no party may share a common citizenship
with any of the parties on the other side of the dispute. Poulos v. Naas Foods,
Inc., 959 F.2d 69, 71 (7th Cir. 1992) (citing Stawbridge v. Curtiss, 7 U.S. (3
Cranch) 267 (1806)). Based upon the undisputed jurisdictional allegations, it
appears that complete diversity does not exist between the Plaintiffs, citizens of
Indiana, and Anonymous Hospital, also a citizen of Indiana. Pursuant to 28
U.S.C. § 1447, “[i]f at any time before final judgment it appears that the district

court lacks subject matter jurisdiction, the case shall be remanded.” § 1447(c).
Thus, remand appears required in this matter. See Caywood v. Anonymous
Hospital, ---F. Supp. 2d ---, 2012 WL 1383123, at *4 (S.D. Ind. March 29, 2012)
(finding remand required where anonymous hospital was identified as a citizen of
the same state as the Plaintiff).
[Dkt. 77.] None of the parties filed a response to the Court’s May 23, 2012 OSC. Having given
the parties an opportunity to respond, the Court now finds that complete diversity of citizenship
does not exist in this matter and therefore the Court lacks subject matter jurisdiction. Thus,
under 28 U.S.C. § 1447, remand is required.
For the reasons discussed above, the Court should remand this matter back to the Marion
Superior Court for lack of subject matter jurisdiction with each party bearing its own costs and
expenses. Any objections to the Magistrate Judge's Report and Recommendation shall be filed
with the Clerk in accordance with 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(a), and failure to
file timely objections within the fourteen days after service shall constitute a waiver of
subsequent review absent a showing of good cause for such failure.

Dated: 06/15/2012

Distribution List:
Edward W. Hearn
JOHNSON & BELL
[e-mail]
Tony B. Manns
WAGNER CRAWFORD & GAMBILL
[e-mail]
Susan Kathleen Swing
JOHNSON & BELL, LTD
[e-mail]
Larry J. Wagner
WAGNER CRAWFORD GAMBILL & TROUT

Mark J. Dinsmore
United States Magistrate Judge
Southern District of Indiana

[e-mail]