American Trust & Savings Bank v. Philadelphia Indemnity Insurance Company et al

Filing 19

Order Requiring Proof of Diversity Citizenship. Proof of Diversity Citizenship due by 12/11/2009. Signed by Magistrate Judge Stephen L. Crocker on 11/25/2009. (llj)

IN THE UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF WISCONSIN

AMERICAN TRUST & SAVINGS BANK, P l a i n t i f f, v. P H IL A D E L P H IA INDEMNITY INSURANCE COMPANY; BREMSER, SCHOMMER & McHUGH, CPA's, LLC; and BREMSER GROUP, INC., D e fe n d a n t s . ORD ER 0 9 -c v -4 7 4 -s lc

This is a civil action for monetary relief brought by plaintiff American Trust & Savings Bank. Plaintiff asserts various contract and tort claims under Wisconsin law against defendants Ph ilad elph ia Indemnity Insurance Co., Bremser, Schommer & McHugh, CPA's, LLC and Bremser G r o u p , Inc. Plaintiff contends that this court has diversity jurisdiction pursuant to 28 U.S.C. § 1 3 3 2(a )(1 ). As the party that filed this case in federal court, plaintiff bears the burden of showing t h a t federal jurisdiction exists. Chase v. Shop n' Save Warehouse Foods, Inc., 110 F.3d 424, 427 (7 th Cir. 1 9 9 7 ) . This court also has an independent obligation to ensure that diversity jurisdiction exists. A r b a u g h v. Y & H Corporation, 546 U.S. 500, 501 (2006); Tylka v. Gerber Products Company, 211 F.3d 4 4 5 , 447-48 (7th Cir. 2000) (federal courts are "always obliged to inquire sua sponte whenever a d o u b t arises as to the existence of federal jurisdiction"). My review of plaintiff's complaint and d e f en d a n t s ' answer indicates that plaintiff has not provided enough information to allow this court to conclude that the parties are diverse under § 1332. H ere's the gap: defendant Bremser, Schommer & McHugh, CPA's, LLC is a former limited liab ility company. Plaintiff's complaint states only that Bremser, Schommer & McHugh, CPA's, LLC w as organized under the laws of Wisconsin and formerly had its principal place of business in W iscon sin. But the citizenship of a limited liability company is determined by the citizenship of its m em b ers. Thomas v. Guardsmark, LLC, 487 F.3d 531, 534 (7 th Cir. 2007) ("an LLC's jurisdictional s ta tem en t must identify the citizenship of each of its members as of the date the complaint or notice

o f removal was filed, and, if those members have members, the citizenship of those members as w ell" ); Wise v. Wachovia Securities, LLC , 450 F.3d 265, 267 (7 th Cir. 2006); 15 Moore's Federal P ra ctice, § 102.57[8] at 102-140.2-141 (2008). Plaintiff has not identified the citizenship of the m em b ers of Bremser, Schommer & McHugh, CPA's, LLC. Although I predict that plaintiff will be able to establish diversity of the parties, it would be a waste of limited judicial resources to proceed further in a case in which jurisdiction may not be pre se n t. Therefore, I will give plaintiff a little over two weeks to establish the diversity of citizenship b etw een plaintiff and defendants. Plaintiff is reminded that if any member of the limited liability c o m p a n y is an individual person, it is the citizenship, not the residency, of that person that matters fo r diversity jurisdiction purposes. An individual is a citizen of the state in which he is domiciled, th at is, where he has a "permanent home and principal establishment, and to which he has the in ten tio n of returning whenever he is absent therefrom." Dakuras v. Edwards, 312 F.3d 256, 258 (7th C ir . 2002); see also Charles Alan Wright, Law of Federal Courts 161 (5 th ed. 1994).

ORD ER It is ORDERED that plaintiff American Trust & Savings Bank may have until December 11, 2 0 0 9 in which to provide this court with verification of the diversity of citizenship between itself and d e fen d a n ts Philadelphia Indemnity Insurance Co., Bremser, Schommer & McHugh, CPA's, LLC and B rem ser Group, Inc. Failure to comply with this deadline will result in dismissal of this case.

E n ter ed this 25 th day of November, 2009.

B Y THE COURT: /s / S T E P H E N L. CROCKER M a g is tr a te Judge

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