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

Filing 5

ORDER that plaintiff may have until May 28, 2013 to file and serve an amended complaint containing good faith allegations sufficient to establish complete diversity of citizenship for purposes of determining subject matter jurisdiction under 28 U.S.C. § 1332. Failure to amend timely shall result in prompt dismissal of this matter for lack of subject matter jurisdiction. Signed by District Judge William M. Conley on 5/13/2013. (elc),(ps)

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

FRANK A. HUMPHREY, and
DEAN HEALTH PLAN, INC.,
Plaintiffs,

OPINION AND ORDER

v.
13-cv-235-wmc
LOVE’S TRAVEL STOPS & COUNTRY
STORES, INC., and HARDEE’S FOOD
SYSTEMS, INC.,
Defendant.

This is a civil action sounding in the common law of negligence and filed pursuant
to 42 U.S.C. § 1332, the federal diversity jurisdiction statute.

Unfortunately for

plaintiffs, the complaint fails to allege facts sufficient to establish diversity jurisdiction.
Diversity jurisdiction is present when a complaint alleges complete diversity of
citizenship among the parties and an amount in controversy exceeding $75,000.

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U.S.C. § 1332. As for complete diversity between the parties, the complaint says that
plaintiff Frank Humphrey is a “resident” of Wisconsin, but “[a]n allegation of residence
is not sufficient to establish citizenship, which requires domicile.”

Winforge, Inc. v.

Coachmen Indus., Inc., 691 F.3d 856, 867 (7th Cir. 2012). Domicile means “the place one
intends to remain.” Kakuras v. Edwards, 312 F.3d 256, 258 (7th Cir. 2002). As a result,
a person has only one domicile, but may have several residences. The complaint also fails
to allege adequately the citizenship of plaintiff Dean Health Plan, Inc. which (as a
subrogee to Humphrey’s claim) has a substantial stake in the outcome of this case and is,
therefore, a real party in interest. See Navarro Savings Association v. Lee, 446 U.S. 458,
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461 (1980) (in determining whether diversity exists, courts look at parties “who are real
and substantial parties to the controversy”).

After properly alleging their own

citizenship, plaintiffs should also identify the state in which defendants Love’s and
Hardee’s are incorporated to ensure complete diversity between the parties.
In light of the nature of plaintiffs’ alleged injuries from a slip and fall, the court
also questions the complaint’s bold allegation that the “amount in controversy, without
interest and costs, exceeds the sum or value specified by 28 U.S.C. § 1332.” (Compl.,
dkt. #1, ¶5.) While a slip and fall resulting in injuries to Humphrey’s head, neck and
back may have been so severe as to meet the $75,000 threshold, more often than not it
falls short. Absent more detail (for example, the severity of Humphrey’s injuries, both
now and in the future, the amount of actual hospital bills paid, right to putative damages
or fees), and on the basis of a conclusory allegation alone, however, the court is not
satisfied that the amount in controversy can be met.
Accordingly, plaintiffs will be required to supply further specific allegations or
proof supporting their claims that (1) complete diversity of citizenship exists between the
parties; and (2) damages exceeding $75,000 are at least within the realm of possibility.

ORDER
IT IS ORDERED that:
1) plaintiff shall have until May 28, 2013, to file and serve an amended
complaint containing good faith allegations sufficient to establish complete
diversity of citizenship for purposes of determining subject matter jurisdiction
under 28 U.S.C. § 1332; and

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2) failure to amend timely shall result in prompt dismissal of this matter for lack
of subject matter jurisdiction.
Entered this 13th day of May, 2013.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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