Whitaker v. Mann et al

Filing 14

OPINION & ORDER: 1. Plaintiff's motion for default judgment 13 as to defendants Pitter Mann and Knight Rush Enterprise is DENIED WITHOUT PREJUDICE. 2. Pursuant to 28 U.S.C. § 1653, Plaintiff shall FILE a supplemental amendment to Complaint w/in 7 days properly setting forth Progressive Casualty Insurance Company's state of incorporation and principal place of business. Signed by Judge Karen K. Caldwell on 1/9/2017. (STC)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
AT LEXINGTON
ROBERT WHITAKER,

CIVIL ACTION NO. 5:16-156-KKC

Plaintiff,
V.

OPINION & ORDER

PITTER A. MANN, KNIGHT RUSH
ENTERPRISE, & PROGRESSIVE
CASUALTY INSURANCE COMPANY,
Defendants.

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This matter is before the Court on plaintiff Robert Whitaker’s motion for default
judgment against defendants Pitter Mann and Knight Rush Enterprise. (DE 13). For the
following reasons, Plaintiff’s motion will be denied.
Federal Rule of Civil Procedure 55 governs default and default judgment. Before a
party can obtain a default judgment under either Rule 55(b)(1) or Rule 55(b)(2), there must
be an entry of default as provided by Rule 55(a). In other words, the entry of a default is a
prerequisite to the entry of a default judgment. Fed. R. Civ. P. 55(b)(1). Accordingly, the
Motion for Default Judgment (DE 13) will be DENIED. Whitaker is instructed to seek an
entry of default from the Clerk before filing a motion for default judgment pursuant to Rule
55.
Aside from Whitaker’s premature motion for default judgment, there remains a
question as to whether this Court has subject matter jurisdiction over this case. A
precondition to entering default is that the district court must enjoy both subject matter
jurisdiction and personal jurisdiction (or in rem/quasi in rem jurisdiction). See Kiesgen v. St.
Clair Marine Salvage, Inc., 724 F. Supp. 2d 721, 729 (E.D. Mich. 2010) (where a “Court is
without subject matter jurisdiction over the case, [ ] its actions while the case was pending
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are a nullity.”) (citing U.S. Fidelity & Guar. Co. v. Thomas Solvent Co., 955 F.2d 1085, 1087
(6th Cir.1992) (where the Court did not have diversity jurisdiction over the case, all actions
in the district court were void)); Evans v. Larchmont Baptist Church Infant Care Ctr., Inc.,
956 F. Supp. 2d 695, 702 (E.D. Va. 2013).
In his complaint, Whitaker alleges that this Court has diversity jurisdiction over his
claims pursuant to 28 U.S.C. § 1332. (Compl. ¶ 7). Under 28 U.S.C. § 1332, the Court has
jurisdiction to hear causes of action where the matter in controversy exceeds $75,000 and is,
among others, between citizens of different states or between citizens of a State and citizens
or subjects of a foreign state. 28 U.S.C. § 1332(a)(1)-(2). To invoke jurisdiction, there must be
“complete diversity” between the parties, meaning that no plaintiff may be a citizen of the
same state of which any defendant is a citizen. Glancy v. Taubman Ctrs., Inc., 373 F.3d 656,
664 (6th Cir. 2004) (citing Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996)); Citizens Bank v.
Plasticware, LLC, 830 F. Supp. 2d 321, 325 (E.D. Ky. 2011).
Whitaker resides in Kentucky. (Compl. ¶ 1). He alleges that Pitter Mann and Knight
Rush Enterprise are citizens of Canada. (Compl. ¶ 2–3). According to the address he provided
the Court for service of process, he alleges that defendant Progressive Casualty Insurance
Company is licensed to do business in Kentucky. (Compl. ¶ 4). As it stands, Whitaker fails
to establish diversity jurisdiction under 28 U.S.C. § 1332 for two reasons.
First, Whitaker has failed to allege the necessary jurisdictional facts of Progressive’s
respective states of citizenship and has not complied with 28 U.S.C. § 1332(c)(1). The
diversity of citizenship statute provides that a corporation is a dual citizen of the state of
incorporation and the state where the corporation maintains its principal place of business.
28 U.S.C. § 1332(c)(1). Whitaker does not allege Progressive’s state of incorporation or where
it maintains its principal place of business. In alleging that diversity exists because
Progressive is licensed to do business in Kentucky, Whitaker has apparently conflated 28
U.S.C. § 1332(c), which governs the citizenship of corporations for purposes of diversity of
citizenship, with 28 U.S.C. § 1391(c), which governs venue. The two do not necessarily
coincide.
Second, the rule of “complete diversity” has not been adequately satisfied here even
assuming that Whitaker did allege Progressive’s state of incorporation and its principal place
of business. The only information provided to the Court places Progressive’s in Kentucky.
This would destroy “complete diversity” because it would position Whitaker and Progressive,
both alleged to be from Kentucky, across the “v” from one another. See § 1332(c)(1).
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The Court will permit Whitaker the opportunity to cure the defect by allowing him to
file a supplemental amendment to the complaint that adequately establishes the necessary
jurisdictional facts. See 28 U.S.C. § 1653. Absent the filing of the supplemental amendment
to the complaint within seven (7) days of the entry of this Order, this action will be dismissed.

Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff’s motion for default judgment (DE 13) as to defendants Pitter Mann and
Knight Rush Enterprise is DENIED WITHOUT PREJUDICE.
2. Pursuant to 28 U.S.C. § 1653, Plaintiff shall FILE a supplemental amendment to
the Complaint within seven (7) days of the date of this Order properly setting forth
Progressive Casualty Insurance Company’s state of incorporation and principal
place of business.

Dated January 9, 2017.

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