Humphrey, Frank et al v. Love's Travel Stops & Country Stores, Inc. et al

Filing 19

ORDER that plaintiff Frank Humphrey shall have until July 26, 2013, to file and serve a second amended complaint consistent with the instructions within the body of this order. Signed by District Judge William M. Conley on 6/26/2013. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

FRANK A. HUMPHREY
Plaintiff,

v.

OPINION AND ORDER
13-cv-235-wmc

LOVE’S TRAVEL STOPS & COUNTRY
STORES, INC., and HARDEE’S FOOD
SYSTEMS, INC.,
Defendants.

On May 13, 2013, the court ordered plaintiff Frank Humphrey to show cause why
his state law negligence-based complaint should not be dismissed for lack of diversity
jurisdiction under 42 U.S.C. § 1332.

As the court explained, Humphrey’s initial

complaint failed to allege facts showing complete diversity between the parties and failed
to show a plausible basis to conclude that the amount in controversy exceeded the
statutory threshold of $75,000. In response, Humphrey has returned with an amended
complaint and supporting documents, purporting to have fixed the problems pointed out
by the court. He has succeeded from a substantive legal standpoint, so the complaint will
be allowed to proceed. However, for the reasons described below the court will require
Humphrey to file a second amended complaint that complies with Federal Rule of Civil
Procedure 10.
A.

Diversity of Citizenship

In its initial order, the court instructed Humphrey to (1) allege his own domicile;
(2) allege the state of incorporation and principle place of business of co-plaintiff Dean
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Health Plan, Inc.; and (3) allege the state of incorporation of defendants Love’s Travel
Stops and Country Stores, Inc. and Hardee’s Food Systems, Inc.
Contrary to the court’s instructions, the amended complaint fails to allege that
plaintiff Frank Humphrey is domiciled in Wisconsin, but does provide enough facts for the
court to reasonably infer that he is domiciled in this state. (See Am. Compl., dkt. #11,
¶5.) Also, contrary to the court’s instructions, the amended complaint does not allege
the principle place of business of Dean Health Plan, Inc., but a reasonable inference can
be drawn from allegations that the Plan is headquartered in Madison, Wisconsin. (Id. at
¶2.) Finally, contrary to the court’s instructions, the amended complaint fails to indicate
the state of incorporation for defendants Love’s and Hardee’s, alleging only that these are
“foreign” (i.e., not Wisconsin) corporations. (Id. at ¶¶3-4.)
For the time being, the allegations meet the bare minimum needed to allege
diversity of citizenship.

However, Mr. Humphrey should be aware that as the case

progresses he will be called upon to prove the citizenship of each of the parties, meaning
he will need to supply the court with documentary evidence establishing all elements of
jurisdictional citizenship according to the requirements of federal law. This includes, for
example, proof as to where he actually claims legal domicile and of the exact state of
incorporation for Love’s and Hardee’s.
More generally, the court is concerned about plaintiff Humphrey’s failure to
diligently follow the court’s instructions. While the court will make allowances for pro se
plaintiffs, it will not continue to tolerate the proliferation of time-consuming, basic legal
errors.

Still less will the court continue to tolerate failure to comply with specific
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instructions set out in court orders. Mr. Humphrey would be well-advised to seek the
assistance of experienced legal counsel, perhaps on a contingency fee basis. Failing that,
he needs to pay closer attention to the requirements of this court or face dismissal of his
suit.
B.

Amount in Controversy

In its initial order, the court also instructed Mr. Humphrey to provide more detail
about the severity of his injuries, the amount of hospital bills paid, and any potential
right to punitive damages or attorneys’ fees, all in order to plausibly establish that the
amount in controversy here exceeds $75,000.

Rather than include further, specific

allegations in his amended complaint, Mr. Humphrey addressed the court’s concerns in a
separate letter (see dkt. #11-4), emphasizing (1) the severity of his injuries, (2) listing his
medical expenses covered by Dean Health Plan, Inc. at $11,544.06 and his total medical
expenses at “3-4 times” that amount (anticipating future medical expenses), (3)
describing interruption to his daily life that would qualify for pain and suffering damages,
and (4) claiming significant future lost earnings. All together, the potential damages
would exceed the $75,000 threshold.
With the amount in controversy requirement satisfied, the only real problem with
Mr. Humphrey’s letter is that it does not take the proper form of a pleading. See generally
Fed. R. Civ. P. 10.

The court will take responsibility for this deficiency, having

instructed Mr. Humphrey that he could provide “allegations or proof” of damages. In fact,
only proper allegations will do. Therefore, Mr. Humphrey will be given 30 days to file a

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second amended complaint setting forth his place of “domicile” and the contents of his
letter into the complaint in the form of numbered allegations.

ORDER
IT IS ORDERED that plaintiff Frank Humphrey shall have until July 26, 2013, to
file and serve a second amended complaint consistent with the court’s instructions above.
Entered this 26th day of June, 2013.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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