Mountain Crest SRL, LLC v. Gila Brew Co., LLC et al

Filing 5

ORDER Regarding Jurisdiction. Proof of Diversity Citizenship due 4/5/2013. Signed by District Judge Barbara B. Crabb on 3/22/13. (rep)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - MOUNTAIN CREST SRL, LLC,
ORDER
Plaintiff,
13-cv-160-bbc
v.
GILA BREW CO., LLC and
TOM MAHLKE,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Defendants Gila Brew Co., LLC and Tom Mahlke removed this breach of contract
case from the Circuit Court for Green County, Wisconsin under 28 U.S.C. §§ 1441 and
1446, relying on 28 U.S.C. § 1332 as a basis for jurisdiction. That statute requires complete
diversity of citizenship between the parties and an amount in controversy greater than
$75,000.

Plaintiff’s complaint and defendants’ notice of removal contain allegations

sufficient to satisfy the amount in controversy requirement. Dkt. #1 at ¶ 8. Unfortunately,
defendants have not alleged facts sufficient to show that the parties’ citizenship is completely
diverse. Defendants’ allegations regarding citizenship are deficient with respect to all parties.
With respect to the limited liability companies, defendants allege that plaintiff
Mountain Crest SRL, LLC is “a limited liability company organized under the laws of the
Country of Barbados with principal place of business located in the State of Wisconsin,” dkt.
#1 at ¶ 5, and Gila Brew Co., LLC is “a limited liability company organized under the laws

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of the State of Delaware with its principal place of business located in the State of Georgia.”
Id. at ¶6. However, the citizenship of a limited liability company is the citizenship of each
of its members, not the state in which it was organized or the location of its principal place
of business. Thomas v. Guardsmark, LLC, 487 F.3d 531, 534 (7th Cir. 2007) (“an LLC's
jurisdictional statement must identify the citizenship of each of its members as of the date
the complaint or notice of removal was filed, and, if those members have members, the
citizenship of those members as well”).
With respect to the individual defendant, defendants allege that Tom Mahlke “is a
resident of the state of Georgia.” Id. at ¶ 7. This is insufficient also. It is the citizenship,
not the residency, of an individual person that matters for diversity jurisdiction purposes.
Heinen v. Northrop Grumman Corp., 671 F.3d 669 (7th Cir. 2012) (notice of removal
asserting that plaintiff was “‘resident’ of Massachusetts and therefore a ‘citizen’ of that state”
was insufficient for diversity jurisdiction purposes); Craig v. Ontario Corp., 543 F.3d 872,
876 (7th Cir. 2008) ("They claim to be 'residents' of Arizona—an inadequate jurisdictional
claim to begin with, as we repeatedly have reminded litigants and district judges."); Meyerson
v. Harrah's East Chicago Casino, 299 F .3d 616, 617 (7th Cir. 2002) ("[R]esidence and
citizenship are not synonyms and it is the latter that matters for purposes of diversity
jurisdiction."). An individual is a citizen of the state in which he is domiciled, that is, where
he has a “permanent home and principal establishment, and to which he has the intention
of returning whenever he is absent therefrom.” Dakuras v. Edwards, 312 F.3d 256, 258 (7th
Cir. 2002). Defendants must provide evidence of Mahlke’s domicile.

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As the proponents of federal jurisdiction, it is defendants’ burden to show that the
parties are citizens of different states and that more than $75,000 is in controversy. Smart
v. Local 702 International Brother of Electrical Workers, 562 F.3d 798, 802-03 (7th Cir.
2009). Accordingly, I will give defendants an opportunity to file supplemental materials that
establish the parties’ citizenship. 28 U.S.C. § 1653 (defective jurisdictional allegations may
be cured).

ORDER
IT IS ORDERED that defendants Gila Brew Co., LLC and Tom Mahlke may have
until April 5, 2013, in which to file supplemental materials showing that subject matter
jurisdiction is present under 28 U.S.C. § 1332. Failure to do so will result in remand of this
case for lack of subject matter jurisdiction.
Entered this 22d day of March, 2013.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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