Rachuy et al v. McCarney

Filing 6

ORDER dismissing complaint without prejudice for lack of subject matter jurisdiction. Signed by Chief Judge Barbara B. Crabb on 7/2/09. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------G A L E A. RACHUY and S AN D R A K. RACHUY, ORDER Plaintiffs, 0 9 -c v -3 5 6 -s lc 1 v. T O M MCCARNEY, D efendan t. --------------------------------------------This is a proposed civil action for monetary relief brought by plaintiff Gale Rachuy, w h o is presently confined at the Faribault Correctional Facility in Faribault, Minnesota, and plaintiff Sandra Rachuy, a resident of Wisconsin. Plaintiffs ask for leave to proceed without p rep aym en t of fees and costs and have supported their requests with an affidavit of indigen cy for each plaintiff. In addition, plaintiff Gale Rachuy has submitted a copy of his six-m o n th trust fund account statement. From the affidavits of indigency and accompanying tru st fund account statement, I conclude that plaintiffs are unable to prepay the fees and
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While this court has a judicial vacancy, it is assigning 50% of its caseload automatically to Magistrate Judge Stephen Crocker. At this early date, consents to the magistrate judge's jurisdiction have not yet been filed by all the parties to this action. Therefore, for the purpose of issuing this order only, I am assuming jurisdiction over the case.

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co sts of instituting this lawsuit. However, plaintiffs' case must be dismissed for lack of su bject matter jurisdiction. Plaintiffs' complaint alleges that this court has subject matter jurisdiction over their law suit under 28 U.S.C. § 1332. I have "an independent obligation to ensure that

jurisdiction exists." Camico Mutual Insurance Co. v. Citizens Bank, 474 F.3d 989, 992 (7th C ir. 2007) (citations omitted). In relevant part, § 1332 provides district courts with

d iversity jurisdiction over civil actions where the amount in controversy exceeds $75,000 an d the action is between citizens of different states. "`For a case to be within the diversity jurisdiction of the federal courts, diversity must be `complete,' meaning that no plaintiff may b e a citizen of the same state as any defendant.'" McCready v. eBay, Inc., 453 F.3d 882, 89 1 (7th Cir. 2006) (quoting Fidelity & Deposit Co. of Maryland v. City of Sheboygan Falls, 713 F.2d 1261, 1264 (7th Cir. 1983)). Plaintiffs allege that plaintiff Gale Rachuy is a resident of Minnesota, plaintiff Sandra R a ch uy is a resident of Wisconsin and defendant Tom McCarney is a resident of Wisconsin. T h e initial problem with plaintiffs' complaint is that they allege where they and defendant reside but they do not say whether they are citizens of Minnesota or Wisconsin. "[R]esidence a nd citizenship are not synonyms and it is the latter that matters for purposes of the diversity jurisdiction." Meyerson v. Harrah's East Chicago Casino, 299 F.3d 616, 617 (7th C ir . 2002). The larger problem is that, assuming that plaintiffs and defendant are actually

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citizens of the states where they are alleged to reside, there is not complete diversity. Both plaintiff Sandra Rachuy and defendant McCarney would be citizens of the same state. Accordingly, although plaintiffs have alleged diversity jurisdiction, they have not show that it exists. Plaintiffs' complaint will be dismissed without prejudice so that they may file their com plaint in state court if they so desire.

OR DER IT IS ORDERED that the complaint filed by plaintiffs Gale Rachuy and Sandra R a ch uy, dkt. #1, is DISMISSED without prejudice for lack of subject matter jurisdiction. E n tered this 2n d day of July, 2009. B Y THE COURT: /s/ B AR B AR A B. CRABB D istrict Judge

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