Marjala v. Fox News Network LLC et al

Filing 41

ORDER signed by Judge Rudolph T. Randa on 7/28/2013. On or before 8/19/2013 Fox Defendants MAY FILE amended Notice of Removal (see Order for details). Failure to file will result in dismissal for lack of subject matter jurisdiction. (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
AARON MARJALA,
Plaintiff,
-vs-

Case No. 13-C-631

FOX NEWS NETWORK LLC,
doing business as
Fox News Channel;
LEE ARMSTRONG;
MEGYN KELLY; and
ROBERT C. WHITAKER;
Defendants.

DECISION AND ORDER

This action, recently assigned to this Court, has several pending motions that
are undergoing briefing. During the Court’s routine review of the file, a fundamental
issue of subject matter jurisdiction has emerged.
Defendants Fox News Network LLC, doing business as Fox News Channel;
Lee Armstrong; and Megyn Kelly (collectively the “Fox Defendants”) removed the
action from the Circuit Court for Milwaukee County, Wisconsin to this federal district
court asserting that the Court has subject matter jurisdiction pursuant to 28 U.S.C.
§ 1332(a)(2).

As with any case involving diversity jurisdiction, this Court is

responsible for independently evaluating the sufficiency of the allegations to
determine whether the parties meet the diversity and amount in controversy

requirements of 28 U.S.C. § 1332. See Muscarello v. Ogle Cnty. Bd. of Comm’rs, 610
F.3d 416, 425 (7th Cir. 2010); Buchel-Ruegsegger v. Buchel, 576 F.3d 451, 453 (7th
Cir. 2009).
Civil Local Rule 8 (E.D. Wis.) provides:
If a pleading or notice of removal asserts jurisdiction
based on diversity of citizenship, the pleading or notice
must identify the amount in controversy and the
citizenship of each party to the litigation. If any party is a
corporation, the pleading or notice must identify both the
state of incorporation and the state in which the
corporation has its principal place of business. If any
party is an unincorporated association, limited liability
company, or partnership, the pleading or notice must
identify the citizenship of all members.
(Emphasis added).
As the party invoking federal jurisdiction, the Fox Defendants bear the burden
of demonstrating that the jurisdictional requirements have been met. See Muscarello,
610 F.3d at 425. The burden of persuasion for establishing diversity jurisdiction is on
the party asserting it. Hertz Corp. v. Friend, 559 U.S. 77,

, 130 S.Ct. 1181, 1195

(2010). With respect to diversity jurisdiction, paragraph 14 of the Notice of Removal
alleges that “Plaintiff, upon information and belief, is a citizen of Wisconsin.” (ECF
No. 1.)
It is well-settled that a party claiming diversity jurisdiction 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

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jurisdictional facts must be supported by competent proof. Hertz, 130 S.Ct. at 119495. Furthermore, “residence and citizenship are not synonyms and it is the latter that
matters for purposes of diversity jurisdiction.” Meyerson v. Harrah’s E. Chi. Casino,
299 F.3d 616, 617 (7th Cir. 2002).

The Notice of Removal must be amended to

clarify the citizenship of the plaintiff; i.e., the identity of the state in which he is
domiciled. See Hunter v. Amin, 583 F.3d 486, 491-92 (7th Cir. 2009). The Court will
give the Fox Defendants an opportunity to amend their Notice of Removal to establish
that subject matter jurisdiction exists.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY
ORDERED THAT:
On or before August 19, 2013, the Fox Defendants MAY FILE an amended
Notice of Removal. Failure to file an amended Notice of Removal by the stated
deadline will result in dismissal of this action for lack of subject matter jurisdiction.
Dated at Milwaukee, Wisconsin, this 28th day of July, 2013.

BY THE COURT:

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

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