ACS Auxiliaries Group Inc et al v. Nicos Holding Co Inc et al
ORDER signed by Judge Rudolph T. Randa on 1/2/2013. The issues of subject matter jurisdiction and Defendant COLL's citizenship will be REVISITED after COLL has been served and appears in this action. (cc: all counsel)(cb)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ACS AUXILIARIES GROUP, INC.,
and CUMBERLAND ENGINEERING CORP.,
Case No. 12-C-1290
NICOS HOLDING CO., INC.
doing business as
NICOS POLYMERS & GRINDING and
COLL MATERIALS EXCHANGE LLC,
DECISION AND ORDER
As required by the Court’s December 21, 2012, Decision and Order, the
Plaintiffs, ACS Auxiliaries Group, Inc. and Cumberland Engineering Corp., filed an amended
complaint to correct their jurisdictional allegations with respect to the citizenship of Defendant
COLL Materials Exchange LLC (“Coll”). (ECF No. 2.) They now allege that “[u]pon
information and belief, Brian Coll, a citizen of Ohio, is the only Member of Coll.” (Am.
Compl. ¶ 5.) (ECF No. 4.)
It is well-settled that a plaintiff claiming diversity jurisdiction pursuant to 28
U.S.C. § 1332 may not do so on the basis of information and belief, only personal knowledge
is sufficient. Am.’s Best Inns, Inc. v. Best Inns of Abilene, L.P., 980 F.2d 1072, 1074 (7th Cir.
1992). Alleged jurisdictional facts must be supported by competent proof. Hertz Corp. v.
, 130 S.Ct. 1181, 1194-95, 175 L.Ed.2d 1029 (2010). The burden of
persuasion for establishing diversity jurisdiction is on the party asserting it. Id. at 1194; See
Muscarello v. Ogle Cnty. Bd. of Comm’rs, 610 F.3d 416, 425 (7th Cir. 2010).
Because the Amended Complaint does not properly plead Coll’s citizenship, the
Plaintiffs have not established that the Court has diversity jurisdiction over this action. The
Court must make certain that subject matter jurisdiction exists. However, the Plaintiffs may
not have access to the information required to sufficiently plead the citizenship of COLL.
Therefore, consistent with the restraint as counseled by Muscarello, 610 F.3d
at 425, on unnecessary dismissals when plaintiffs may be able to plead the existence of
jurisdiction and when such jurisdiction, in fact, exists, the Court will await COLL’s
appearance in this action. After COLL has appeared in this action, the issue of COLL’s
citizenship will be revisited.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY
The subject matter jurisdiction issue will be REVISITED, after COLL has been
served and appears in this action.
Dated at Milwaukee, Wisconsin this 2nd day of January, 2013.
BY THE COURT
Hon. Rudolph T. Randa
U.S. District Judge
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