Kapitan v. United Government Security Officers of America

Filing 21

Memorandum Opinion and Order: The citizenship of the parties to this action is not diverse, and, therefore, this Court lacks subject matter jurisdiction. The case is DISMISSED without prejudice. Magistrate Judge Kathleen B. Burke on 6/7/2018. (D,I)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

ROBERT B. KAPITAN,
Plaintiff,
v.
UNITED GOVERNMENT SECURITY
OFFICERS OF AMERICA, International
Union,
Defendant.

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CASE NO. 5:17CV2638

MAGISTRATE JUDGE
KATHLEEN B. BURKE

MEMORANDUM OPINION & ORDER

This matter is before the Court based on the parties’ responses to the Court’s Order to
Show Cause why this action should not be dismissed for lack of subject matter jurisdiction. For
the reasons explained below, the Court lacks subject matter jurisdiction in this case. Therefore,
this action is dismissed pursuant to Fed. R. Civ. P. 12(h)(3).
I.
Plaintiff Robert B. Kapitan filed his Complaint against Defendant United Government
Security Officers of America (“UGSOA”), an unincorporated union, alleging a “breach of
contract action that arises out of an Employment Agreement.” Doc. 1, p. 1, ¶1. He asserted
subject matter jurisdiction under “28 U.S.C. § 1331 because the amount in controversy exceeds
$75,000 and there is diversity of citizenship between the parties.” Doc. 1, p. 2, ¶5.1 Kapitan
explained that he is a citizen of Ohio and that UGSOA’s principal offices are in Massachusetts.
Doc. 1, pp. 1, ¶¶ 2-3.

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28 U.S.C. § 1331 governs federal court jurisdiction based on a federal question. 28 U.S.C. § 1332 is the diversity
statute.

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Thereafter, the Court issued an Order directing both parties to Show Cause why this
action should not be dismissed for lack of subject matter jurisdiction. Doc. 18. The Court
observed that an unincorporated labor organization is deemed to be a citizen of every state in
which one or more of its members resides; that the parties agree that UGSOA’s members work in
at least five cities in Ohio; and that, therefore, it is highly likely that one or more of UGSOA’s
members resides in, and is a citizen of, Ohio. Doc. 18, p. 1 (citing United Steelworkers of Am.,
AFL-CIO v. R.H. Bouligny, Inc., 382 U.S. 145 (1965) and White v. Int’l Union, United
Automobiles, Aerospace and Agric. Implement Worker of Am., 2016 WL 54718, *3 (E.D.Cal.
Jan. 5, 2016)). In other words, the Court appeared to lack subject matter jurisdiction because the
parties were not diverse. Kapitan filed a response in which he maintains that the Court has
subject matter jurisdiction in this case based on diversity of citizenship (Doc. 19) and UGSOA
filed a response in which it concedes that the Court does not have subject matter jurisdiction in
this case based on diversity of citizenship (Doc. 20).
II.
The federal district courts are courts of limited jurisdiction. 28 U.S.C. § 1332 grants the
court original jurisdiction over matters not arising under federal law only if (1) the amount-incontroversy exceeds $75,000, and (2) there is complete diversity between the parties, “i.e., only
if there is no plaintiff and no defendant who are citizens of the same State.” Wisconsin Dep’t of
Corr. v. Schachet, 524 U.S. 371, 388 (1998).
In support of diversity jurisdiction, Kapitan asserts, “there is no evidence that any
UGSOA local member resides in Ohio.” Doc. 1, p. 1. But “[t]he initial burden of proving
citizenship rests with the party invoking the court’s jurisdiction.” Persinger v. Extendicare
Health Services, Inc., 539 F.Supp.2d 995, 997 (S.D.Ohio 2008) (citing Kaiser v. Loomis, 391
F.2d 1007, 1010 (6th Cir. 1968) (emphasis supplied)); see also McNutt v. General Motors
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Acceptance Corp. of Ind., 298 U.S. 178, 188-189 (1936) (when a court orders the party alleging
jurisdiction to establish that jurisdiction exists, the part must justify its allegations by a
preponderance of the evidence, not mere averment); 13E Charles Alan Wright et al., Fed. Prac.
& Proc. Juris. § 3612 (3d ed. 2018). Here, Kapitan, the party invoking the Court’s jurisdiction,
has not proved citizenship; instead, he provides mere averments and relies on the absence of
evidence. This is insufficient. See id. Moreover, UGSOA, in its response, provides an affidavit
from its President stating that UGSOA records show that approximately 240 members reside in
Ohio. Doc. 20-1, p. 1, ¶3. Thus, the evidence presented to the Court shows that UGSOA
members reside in Ohio and that the parties, therefore, are not diverse. See Bouligny, 382 U.S.
145.
Kapitan next argues that “the citizenship of local [UGSOA] members do not matter since
they are not substantial parties to the litigation.” Doc. 19, p. 1. He states, “the entity with the
most substantial connection to the action is the International Union, not the individual local
union,” and concludes that the “real party to the action is the International, not the local bodies.”
Doc. 19, p. 2 (citing Navarro Savings Ass’n. v. Lee, 446 U.S. 458 (1980)). Kapitan’s argument is
misplaced. In Navarro, the Supreme Court considered whether the citizenship of trustees suing
in their own names should be determined by the citizenship of the individual trustees, or whether
the court should also consider the citizenship of the trust’s beneficiaries. Because the trustees
were suing in their own name, the Court found that the citizenship of the trust’s beneficiaries was
not relevant for purposes of establishing diversity of citizenship. Navarro, 446 U.S. at 462.
Here, UGSOA is not a trust and Kapitan is not suing individuals. He is suing an unincorporated
union. Thus, the rule in Bouligny applies, not the rule in Navarro. See, e.g., Carden v. Arkoma
Assocs., 494 U.S. 185, 191, 195-196 (1990) (rejecting the notion that Navarro applied to limit
the citizenship of a limited partnership: “We adhere to our oft-repeated rule that diversity
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jurisdiction in a suit by or against the entity depends on the citizenship of ‘all the members’” and
“each of its members,” quoting Bouligny, 382 U.S. at 146).
III.
For the reasons explained above, the citizenship of the parties to this action is not diverse,
and, therefore, this Court lacks subject matter jurisdiction. Accordingly, the case is DISMISSED
without prejudice.

IT IS SO ORDERED.

Dated: June 7, 2018

/s/ Kathleen B. Burke
Kathleen B. Burke
United States Magistrate Judge

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