MILLER v. PANTHER II TRANSPORTATION, INC.

Filing 60

ORDER - While masquerading as a factual challenge to diversity jurisdiction, Mr. Miller provides no evidence to contradict Panther's showing of complete diversity. Mr. Miller's challenge is thus accurately characterized as a facial chal lenge, and that challenge fails in light of Panther's affidavits establishing that Expediter is a citizen of Tennessee, Wyoming, Missouri, Arizona, and New Jersey--but not Indiana, of which Mr. Miller is a citizen. Panther has met its burde n of alleging that all defendants are diverse from Mr. Miller, as required to invoke this Court's diversity jurisdiction. The Court therefore DENIES Mr. Miller's Motion to Remand 36 and additionally GRANTS Panther's Motion for Leave to File Surreply 52 (SEE ORDER FOR ADDITIONAL INFORMATION). Signed by Judge Jane Magnus-Stinson on 9/25/2018. (DWH)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JOHN MILLER,
Plaintiff,
v.
PANTHER II TRANSPORTATION, INC.,
EXPEDITER SERVICES, LLC,
WILLIAM A. HALL,
Defendants.

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No. 1:17-cv-04149-JMS-TAB

ORDER
Plaintiff John Miller originally brought this lawsuit in state court after falling from the back
of a box truck which unexpectedly moved away from the loading dock. Defendant Panther II
Transportation, Inc. (“Panther”) removed on the basis of the Court’s diversity jurisdiction. Mr.
Miller’s initial complaint named Panther as the sole defendant, alleging that Panther was
vicariously liable for his injuries as the employer of the truck driver. Discovery later revealed that
the driver was William Hall, and that Mr. Hall may actually (or additionally) be employed by
Expediter Services, LLC (“Expediter”). So Mr. Miller sought, and the Court eventually granted,
leave to amend his complaint to join Mr. Hall and Expediter as defendants. [Filing No. 34.] One
problem remained, however: Mr. Miller did not know the citizenship of Expediter. Now, Mr.
Miller contends that complete diversity does not exist and requests that the Court remand this
matter to state court. Panther opposes Mr. Miller’s Motion to Remand, attaching affidavits from
individuals with various ownership interests in Expediter and its members, and moves for leave to
file a surreply to address Mr. Miller’s evidentiary objections. For the reasons described below, the

Court GRANTS Defendants’ Motion for Leave to File Surreply and DENIES Mr. Miller’s Motion
to Remand.
I.
BACKGROUND
On October 11, 2017, Mr. Miller brought suit in state court against Panther, alleging that
he was injured in a November 2015 work incident when the box truck he was unloading
prematurely moved away from the loading dock. [Filing No. 1-1 at 3-4.] On November 8, 2017,
Panther removed the matter, invoking this Court’s diversity jurisdiction. [Filing No. 1.] On
February 28, 2018, Mr. Miller moved to amend his complaint to join Mr. Hall and Expediter as
defendants. [Filing No. 17.]
On July 6, 2018, the Court granted Mr. Miller’s motion for leave to amend. [Filing No.
34.] The Court noted, however, that this matter could not proceed as-is if Expediter’s joinder
would destroy diversity:
One issue remains, however. Mr. Miller’s proposed amended complaint, [Filing
No. 17-1], alleges that he does not know the citizenship of Expediter’s members.
The Court therefore ORDERS Mr. Miller to conduct whatever investigation may
be necessary to properly allege Expediter’s citizenship and to file an amended
complaint reflecting the proper jurisdictional allegations on or before July 20,
2018. Should Expediter’s joinder destroy diversity, Mr. Miller should allege such
and contemporaneously file a motion to remand, whereupon the other
defendants may renew their opposition to Mr. Miller’s motion for leave to amend
as to Expediter. See, e.g, Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 759
(7th Cir. 2009) (“When joinder of a nondiverse party would destroy subject matter
jurisdiction, 28 U.S.C. § 1447(e) applies and provides the district court two options:
(1) deny joinder, or (2) permit joinder and remand to state court. These are the only
options; the district court may not permit joinder of a nondiverse defendant and
retain jurisdiction.” (internal footnote and citation omitted)); id. at 761 (“. . . [W]hen
a district court is unaware that joinder will destroy diversity, it may reconsider its
prior decision permitting leave to amend a complaint.”).

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[Filing No. 34 at 13-14.] Thus, the Court ordered Mr. Miller to conduct an investigation as to
Expediter’s citizenship, directed that Mr. Miller file a motion to remand if appropriate, and advised
Panther that it may renew its opposition to Expediter’s joinder if Mr. Miller sought remand.
On July 20, 2018, Mr. Miller filed his Amended Complaint, stating that the “identity of the
members of [Expediter] and their states of citizenship are unknown to Plaintiff despite inquiry to
Defendant Expediter.” [Filing No. 35.] As directed by the Court, Mr. Miller contemporaneously
moved to remand this case to state court. [Filing No. 36.] Mr. Miller’s Motion to Remand and
Panther’s Motion for Leave to File Surreply are fully briefed and ripe for decision.
II.
DISCUSSION
Mr. Miller argues that remand is required because Expediter has failed to establish that
subject matter jurisdiction exists. [Filing No. 36.]
As explained in the Court’s Order permitting Mr. Miller to join Expediter, Panther had the
option to reassert its objection to Expediter’s joinder in response to Mr. Miller’s Motion to
Remand. [Filing No. 34 at 14.] It has not done so. Instead, Panther opposes Mr. Miller’s Motion
on its merits, detailing Expediter’s corporate structure and attaching affidavits which, if credited,
would establish that Expediter is a citizen of several states (specifically, Tennessee, Wyoming,
Missouri, Arizona, and New Jersey), none of which is Indiana, the state of which Mr. Miller is a
citizen. [Filing No. 48.] Panther argues that complete diversity exists and that remand would
therefore be inappropriate.
In reply, Mr. Miller lodges what are essentially evidentiary objections. First, Mr. Miller
argues that several affiants purport to have personal knowledge of the domiciles of other persons
without any facts to support the claim of personal knowledge. [Filing No. 50 at 4-5.] Second, Mr.
Miller argues that the affidavits assert domicile in a conclusory fashion, with no facts or evidence

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to support the claim that each person intends to remain indefinitely in the state of residence. [Filing
No. 50 at 5-6.]
In its proposed surreply, Panther responds to Mr. Miller’s evidentiary objections, arguing
that the affidavits are sufficient. [Filing No. 52-1.] Mr. Miller opposes Panther’s Motion for Leave
to File Surreply, arguing that additional briefing is unnecessary because Panther “has had ample
opportunity to thoroughly brief all of these issues in its response.” [Filing No. 58 at 3.]
As an initial matter, the Court GRANTS Panther’s Motion for Leave to File Surreply.
[Filing No. 52-1.] Mr. Miller’s reply brief is dedicated to identifying evidentiary deficiencies from
Panther’s response brief. Panther could not have been expected to “make an argument in
anticipation of an objection that may never be made.” Smith v. Bray, 681 F.3d 888, 902 (7th Cir.
2012), overruled in part on other grounds by Ortiz v. Werner Enters., Inc., 834 F.3d 760 (7th Cir.
2016). And while the Local Rules expressly allow for surreplies in similar circumstances on
summary judgment, S.D. Ind. L.R. 56-1(d), nothing in the Local Rules prohibits the Court from
permitting a surreply when doing so would provide all parties with a fair opportunity to address a
potentially dispositive issue, see Smith, 681 F.3d at 902-03. The Court finds Panther’s Motion for
Leave to be well-taken and limited to the issues raised in Mr. Miller’s reply brief, and therefore
considers Panther’s proposed surreply in evaluating Mr. Miller’s Motion to Remand.
Turning, then, to the merits of Mr. Miller’s Motion for Remand, the Court begins with the
recognition that the federal district courts are courts of limited jurisdiction. Exxon Mobil Corp. v.
Allapattah Servs., Inc., 545 U.S. 546, 552 (2005). “[T]he district courts may not exercise
jurisdiction absent a statutory basis,” id., and “[t]he party invoking federal jurisdiction bears the
burden of establishing the elements of jurisdiction,” NLFC, Inc. v. Devcom Mid-Am., Inc., 45 F.3d
231, 237 (7th Cir. 1995). Here, Panther is invoking the jurisdiction of this Court by opposing Mr.

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Miller’s Motion, see id., relying upon 28 U.S.C. § 1332. That statute, which sets forth the
requirements for diversity jurisdiction, explains that “district courts shall have original jurisdiction
of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive
of interest and costs, and is between citizens of different States . . . .” 28 U.S.C. § 1332(a). This
“statutory formulation . . . require[s] complete diversity between all plaintiffs and all defendants.”
Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005).
Mr. Miller argues that Panther has failed to establish that Expediter is diverse from Mr.
Miller—that is, that Expediter is a citizen of states other than Indiana. Where “the court’s
jurisdiction is challenged as a factual matter by either the court or the opposing party, the party
invoking the jurisdiction bears the burden of supporting its jurisdictional allegations by competent
proof,” which is “proof to a reasonable probability that jurisdiction exists.” NLFC, Inc., 45 F.3d
at 237. In contrast, a facial challenge requires only that the party invoking jurisdiction sufficiently
allege a basis for jurisdiction. Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 444 (7th
Cir. 2009).
Panther has proffered eight affidavits, each attesting to Expediter’s corporate form and the
citizenship of its members. [Filing No. 48-2; Filing No. 48-3; Filing No. 48-4; Filing No. 48-5;
Filing No. 48-6; Filing No. 48-7; Filing No. 48-8; Filing No. 48-9.] Where the citizenship of a
particular member is itself an unincorporated entity, Panther has proffered affidavits attesting to
the citizenship of the relevant trustors, trust beneficiaries, partners, or members. [See Filing No.
48-2 at 1-2.] All told, the affidavits demonstrate that none of Expediter’s members share Mr.
Miller’s Indiana citizenship, making jurisdiction proper if Expediter’s showing is legally
sufficient.

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Mr. Miller does not contest Panther’s application of the law of associational citizenship.
Nor does he provide any basis for contesting the averments. Rather, Mr. Miller contends, without
citation to any authority to support his contention, that Panther’s evidentiary showing is
insufficient because the affiants purport to have personal knowledge of other individuals’ domicile
without attesting to the underlying facts supporting that personal knowledge. Similarly, Mr. Miller
contends that it is not enough for an affiant to testify to one’s “citizenship” or “domicile,” but
instead must offer evidence to support the contention that a particular state is where the affiant (or
other individual) intends to remain indefinitely.
But the problem with Mr. Miller’s arguments is that he “ignores the critical difference
between facial and factual challenges to jurisdiction.” Apex Digital, Inc. v. Sears, Roebuck & Co.,
572 F.3d 440, 443 (7th Cir. 2009). While Mr. Miller purports to raise a factual challenge to
Panther’s claim to jurisdiction, such a challenge requires that the party challenging jurisdiction
raise “external facts call[ing] the court’s jurisdiction into question.” Id. at 444. Here, Mr. Miller
has presented no such evidence to counter Panther’s affidavits. Thus, while painted as a factual
challenge, Mr. Miller’s jurisdictional challenge is really a facial challenge, which requires only
that the court determine whether the party asserting jurisdiction “has sufficiently alleged a basis
of subject matter jurisdiction.” Id. at 443 (emphasis in original). The affidavits proffered by
Panther certainly meet this standard by identifying each layer of unincorporated entities which
own Expediter and then stating the “citizenship” or “domicile” of each.
Even if Panther were required to do more than merely allege the requisite jurisdictional
allegations in response to Mr. Miller’s facial jurisdictional challenge, Mr. Miller has not shown
that the affidavits offered in support are improper. For one, each attests that the affiant has personal
knowledge of all facts alleged therein. No authority requires that an affiant attest to the facts

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establishing personal knowledge in the absence of any evidence undermining the assertions of
personal knowledge. Similarly, it is simply not the case that an affiant cannot attest to the
citizenship of another person. Again, Mr. Miller provides the Court with no reason to question the
veracity of the affiants’ assertions that they have personal knowledge of the facts underlying their
statements.
Finally, Mr. Miller challenges the terms “citizenship” or “domicile” as legal conclusions,
but again cites to no authority requiring that an affiant set forth all underlying facts for those
particular assertions. Courts regularly entertain affidavits attesting to the “primary place of
business” for corporate citizenship, and that phrase, too, is a somewhat conclusory assertion
derived from a series of background facts about the workings of the business. See Hertz Corp. v.
Friend, 559 U.S. 77, 92-93 (2010) (“We conclude that ‘principal place of business’ is best read as
referring to the place where a corporation’s officers direct, control, and coordinate the
corporation’s activities.”). Some showing of the underlying facts would be required if a party
provided evidence challenging such an assertion, but that does not undermine the sufficiency of
an unchallenged affidavit attesting to things such as “primary place of business” or an individual’s
“domicile.” Accordingly, even if Panther were required to do more than allege citizenship at this
stage, it has adequately done so via the sworn, signed affidavits it has proffered in response to Mr.
Miller’s Motion.
III.
CONCLUSION
While masquerading as a factual challenge to diversity jurisdiction, Mr. Miller provides no
evidence to contradict Panther’s showing of complete diversity. Mr. Miller’s challenge is thus
accurately characterized as a facial challenge, and that challenge fails in light of Panther’s
affidavits establishing that Expediter is a citizen of Tennessee, Wyoming, Missouri, Arizona, and

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New Jersey—but not Indiana, of which Mr. Miller is a citizen. Panther has met its burden of
alleging that all defendants are diverse from Mr. Miller, as required to invoke this Court’s diversity
jurisdiction. The Court therefore DENIES Mr. Miller’s Motion to Remand [36] and additionally
GRANTS Panther’s Motion for Leave to File Surreply [52].

Date: 9/25/2018

Distribution via ECF only to all counsel of record

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