Walker v. Covance Clinical Research Unit, Inc. et al

Filing 6

Order dismissing Respondents Does 1-10. Petitioner may have until September 18, 2008, in which to file with the court a Financial Affidavit and to respond to this order. Signed by Judge Barbara B Crabb on 8/28/08. (vob),(ps)

Walker v. Covance Clinical Research Unit, Inc. et al

Doc. 6

Case: 3:08-cv-00493-slc

Document #: 6

Filed: 08/28/2008

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IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------A N D R EW WALKER, ORDER Petitioner, 0 8 -c v -4 9 3 -s lc v. C O V AN C E CLINICAL RESEARCH UNIT INC; MERCK & CO., INC.; D R . STEVEN and DOES 1-10, R espo nd ents. --------------------------------------------Because Judge Shabaz is on a medical leave of absence from the court for an indeterm inate period, the court is assigning 50% of its caseload automatically to Magistrate Judge Stephen Crocker. It is this court's expectation that the parties in a case assigned to the magistrate judge will give deliberate thought to providing consent for the magistrate judge to preside over all aspects of their case, so as to insure that all cases filed in the W estern District of Wisconsin receive the attention they deserve in a timely manner. At th is early date, consents to the magistrate judge's jurisdiction have not yet been filed by all th e parties to this action. Therefore, for the sole purpose of issuing this order, I am assuming jurisdiction over the case. This case was originally filed in the District Court for the Eastern District of Missouri and was transferred to this court on August 21, 2008. In his complaint brought under the

Dockets.Justia.com

Case: 3:08-cv-00493-slc

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Filed: 08/28/2008

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diversity jurisdiction statute, 28 U.S.C. § 1332, petitioner Andrew Walker alleges that serio us injuries he sustained during experimental drug testing were the result of negligent acts of respondents Covance Clinical Research Unit, Inc., Merck & Co., Inc. and Dr. Steven. P etitio n er requests leave to proceed without prepayment of fees and costs or providing security for such fees and costs, pursuant to 28 U.S.C. § 1915. At the outset, it is clear that petitioner's complaint is missing key facts that prevent the court from determining whether he may proceed with his case. Petitioner's sole claim in this case is a state law claim of negligence. This court can entertain this claim only if petition er and respondents are citizens of different states and the amount in controversy exceed s $75,000. Petitioner has asked for damages in an amount exceeding $75,000. H ow ever, he has not alleged facts that would allow a determination whether the parties are of diverse citizenship. A federal court has an independent obligation to insure that it has ju risd ictio n to hear each case presented to it. Hurley v. Motor Coach Industries, Inc., 222 F.3d 377, 379 (7th Cir. 2000). In his complaint, petitioner alleges that · · he is a "resident of St. Louis, Missouri." R espo nd ent Covance Clinical Research Unit, Inc. is "a research facility that does research for pharmaceutical companies which is licensed to do business in Madison, W isconsin as an [sic] corporation with a facility located at 3402 Kinsman Blvd, M adison , WI 53704."

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R esp o ndent Merck & Co., Inc. is a "New Jersey Corporation with its principle C orp ora te office located at 1 Merck Dr., Whitehouse Station, NJ 088889."

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R espo nd ent Dr. Steven is "a psychologist with offices in the Madison, Wisconsin area." F o r the purpose of establishing diversity jurisdiction, the court examines the

citizenship , not the residency, of individual persons. An individual is a citizen of the state in which he is domiciled, that is, where he has a "permanent home and principal estab lish m e nt, and to which he has the intention of returning whenever he is absent therefrom ." Charles Alan Wright, Law of Federal Courts 161 (5th ed. 1994); see also D akura s v. Edwards, 312 F.3d 256, 258 (7th Cir. 2002). A person has only one domicile, b ut may have several residences. Steigleder v. McQuesten, 198 U.S. 141 (1905)

(d istin gu ish in g between residency and citizenship). Although I suspect that petitioner's and respo nd ent Dr. Steven's place of residency and place of citizenship may be the same, it is petition er's burden to establish citizenship of both. At the present time, he has established on ly residency. The citizenship of a business entity is determined by its organizational structure. A corp ora tion is deemed to be a citizen of the state in which it is incorporated and the state in which its principal place of business is located, 28 U.S.C. § 1332(c)(1); Hoagland ex rel. M idw est Transit, Inc. v. Sandberg, Phoenix & von Gontard, P.C., 385 F.3d 737, 741 (7th C ir. 2004). Petitioner has alleged that respondent Covance is a Wisconsin corporation and

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that respondent Merck is a New Jersey corporation. However, he has not identified the prin cipal places of business for these respondents as he must. An additional problem with petitioner's complaint is that he has not provided any info rm ation regarding the identity or citizenship of respondents Does 1-10. Moreover, petition er has not identified what claims he is raising against them. Ordinarily, if a party w an ts to sue someone whose name is unknown to him, he must explain in the body of his co m p lain t what the Doe respondent did, and where and when he did it. In other words, unnam ed respondents are to be treated no differently from named respondents, except that th ey are referred to as Does until the petitioner can learn the true name of the perpetrator of the allegedly unconstitutional acts. In this way, the court can determine whether the p etitio n er states a claim against the Doe respondent and the Doe respondent has notice of the claim against him. Because petitioner has failed to explain what if anything any John D oe respondent did to cause his injuries, I will dismiss respondents Does 1-10 from this a ctio n . P etitio n er asserts that the amount of this claim "exceeds the jurisdiction limit" and h e asks for damages exceeding $30,000,000. The test whether a case satisfies the amount in controversy requirement is whether the complaint makes a good faith claim for the am ount. Herremans v. Carrera Designs, Inc., 157 F.3d 1118, 1121 (7th Cir. 1998). The sum claimed by the plaintiff controls, St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938), and dismissal for lack of jurisdiction is not appropriate unless it appears

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to a legal certainty that the claim is really for less than the jurisdictional amount. Id. There is no reason to believe that plaintiff did not suffer damages amounting to more than $7 5,0 00 . Finally, it is unclear from the affidavit of indigency petitioner submitted in support o f his request to proceed without prepayment of fees or costs what amount of income he receives from sources other than his employment. He lists "self employment" and

"G o verm ent assitant GR" as sources of other income and has provided indeterminable am o un ts for those sources. Petitioner will be required to clarify the source and amount of an y additional income he receives.

ORDER IT IS ORDERED that 1. 2. R e sp o nd en ts Does 1-10 are DISMISSED from this action. Petitioner may have until September 18, 2008, in which to file with the court a response to this order containing the following information: a. b. c. d. the citizenship of petitioner; th e citizenship of respondent Dr. Steven; the principal place of business of respondent Merck & Co, Inc.; the principal place of business of respondent Covance Clinical Research U n it, Inc.; and

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e.

the source and amount of income he receives from any source other than his employment.

3.

Failure to comply with the September 18, 2008 deadline will result in an order dism issing this case for lack of jurisdiction.

Entered this 28 t h day of August, 2008. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge

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