Averkamp et al v. Swimways Corporation et al

Filing 11

ORDER signed by Judge Rudolph T. Randa on 6/25/2013. On or before 7/19/2013 removing Defendants MUST FILE amended notice of removal (see Order for details). Failure to file by stated deadline will result in order remanding action without further notice. (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ROBERT WILLIAM AVERKAMP and
JANICE AVERKAMP,
Plaintiffs,
BLUE CROSS BLUE SHIELD OF WISCONSIN
Involuntary Plaintiff,
Case No. 13-C-473
-vsSWIMWAYS CORPORATION
CNA FOUNDATION,
TARGET CORPORATION, and
ACE AMERICAN INSURANCE COMPANY
Defendants.

DECISION AND ORDER

This products liability action filed in the Circuit Court for Milwaukee County,
Wisconsin, arises out of allegations that on about July 10, 2011, severe injuries,
including those resulting in the loss of an eye, were sustained by the minor son of the
Plaintiffs, Robert William Averkamp and Janice Averkamp, while he and other family
members were using a Toypedo projectile in their backyard pool in Germantown,
Wisconsin. Defendants Target Corporation (“Target”) and ACE American Insurance
Company (“ACE”) (the “removing Defendants”) removed the action to this Court.
In its routine review of civil actions, the Court has recognized jurisdictional
deficiencies in the notice of removal. (ECF No. 1.) Rather than remanding the case,
the Court will afford the removing Defendants an opportunity to remedy those

deficiencies.
Pursuant to 28 U.S.C. § 1441, “any civil action brought in a State court of
which the district courts of the United States have original jurisdiction, may be
removed by the defendant or the defendants, to the district court of the United States
for the district and division embracing the place where such action is pending.” 28
U.S.C. § 1441(a). The party seeking removal, as the proponent of federal subject
matter jurisdiction, has the burden of proof as to the existence of such jurisdiction.
Travelers Prop. Cas. v. Good, 689 F.3d 714, 722 (7th Cir. 2012). “Courts should
interpret the removal statute narrowly and presume that the plaintiff may choose his or
her forum.” Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993). In other
words, there is a strong presumption in favor of remand.
In general, federal courts have jurisdiction diversity in actions where there is
complete diversity of citizenship; that is, no plaintiff is a citizen of the same state as
any defendant, and an amount in excess of $75,000, exclusive of interest and costs, is
in controversy. See 28 U.S.C. § 1332(a)(1); LM Ins. Corp. v. Spaulding Enters. Inc.,
533 F.3d 542, 547 (7th Cir. 2008). The defects in the notice of removal relate to the
sufficiency of its allegation regarding the citizenship of the parties.
The citizenship of a corporation for diversity purposes is the state where the
corporation is incorporated and the state where the corporation has its principal place
of business, that is, the corporation's headquarters or “nerve center.” See 28 U.S.C. §
1332(c)(1); Hertz Corp. v. Friend, 559 U.S. 77, 91-97 (2010); Ervin v. OS Rest. Servs.,
-2-

632 F.3d 971, 979 (7th Cir. 2011).
The notice of removal states that Target is located in Minnesota. Neither
Target‟s state of incorporation nor its principal place of business is alleged. With
respect to Defendants Swimways Corporation, CNA Foundation, and ACE, each state
of incorporation is alleged; that is, Virgina, Illinois, and Pennsylvania, respectively.
However, the notice of removal does not allege the principal place of business of these
companies.
Additionally, allegations of citizenship made on information and belief are
insufficient to invoke a federal court's jurisdiction. See America's Best Inns, Inc. v.
Best Inns of Abilene, L.P., 980 F.2d 1072, 1074 (7th Cir.1992) (only a statement about
jurisdiction “made on personal knowledge has any value” and a statement made “„to
the best of my knowledge and belief‟ is insufficient” to engage federal jurisdiction in
diversity). The citizenship of the Plaintiffs is alleged “upon information and belief.”
(Notice of Removal ¶ 5(a).) That allegation is insufficient.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY
ORDERED THAT:
On or before July 19, 2013, the removing Defendants MUST FILE an
amended notice of removal; and

-3-

Failure to file an amended notice of removal by the stated deadline will result
in an order remanding this action without further notice.
Dated at Milwaukee, Wisconsin, this 25th day of June, 2013.

BY THE COURT:

__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

-4-