Chidester-Roesch, Jennifer v. Camp Douglas Farmers Cooperative et al

Filing 47

ORDER that plaintiff Jennifer Chidester-Roesch may have until 11/25/2013, to show cause why this case should not be dismissed for lack of subject matter jurisdiction. Signed by District Judge Barbara B. Crabb on 11/7/2013. (voc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - JENNIFER D. CHIDESTER-ROESCH,
individually and as independent executor
of the ESTATE OF DENNIS J. CHIDESTER
and the ESTATE OF CAROLYN CHIDESTER,
ORDER
Plaintiffs,
13-cv-521-bbc
v.
CAMP DOUGLAS FARMERS COOPERATIVE,
TRIANGLE INSURANCE COMPANY, INC.
and UNITED HEALTHCARE SERVICES, INC.,
Defendants,
v.
C.H.S., INC. and ZURN PEX, INC.,
Third Party Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Plaintiffs Jennifer Chidester-Roesch, estate of Dennis Chidester and estate of Carolyn
Chidester are suing defendant Camp Douglas Farmers Cooperative for negligently installing
a propane tank that later exploded and killed Dennis and Carolyn. Plaintiffs identify
defendant Triangle Insurance Company as the cooperative’s insurer and defendant United
Health Services as an entity that paid some of Dennis’s and Caroyln’s medical expenses
before they died. Defendants Camp Douglas and Triangle have filed third party complaints
against CHS, Inc. and Zurn Pex, Inc., who are identified as the propane supplier and the

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manufacturer of the flexible conduit.
A review of plaintiffs’ complaint raises questions about subject matter jurisdiction
that must be resolved before I can allow the case to proceed. McCready v. White, 417 F.3d
700, 702 (7th Cir. 2005) ("Ensuring the existence of subject matter jurisdiction is the court's
first duty in every lawsuit.") (citing Steel Co. v. Citizens for a Better Environment, 523 U.S.
83 (1998)). Plaintiffs rely on 28 U.S.C. § 1332 as a basis for jurisdiction, which requires a
showing that (1) plaintiffs and defendants are citizens of different states and (2) the amount
in controversy exceeds $75,000.

Although plaintiffs’ complaint appears to satisfy the

amount in controversy requirement, it does not show that plaintiffs and defendants are
citizens of different states.
In the complaint, plaintiff Chidester-Roesch alleges that she is a “resident” of Illinois.
In addition, she says that the estates of Dennis Chidester and Carolyn Chidester are pending
in court in Illinois. These allegations are inadequate for two reasons. First, an individual’s
citizenship under § 1332 is determined not by her residency, but by her “domicile,” which
is “the state in which [she] intends to live over the long run.” Heinen v. Northrop Grumman
Corp., 671 F.3d 669, 670 (7th Cir. 2012). The Court of Appeals for the Seventh Circuit
has stated in numerous cases that allegations about residency are not enough. In re Sprint
Nextel Corp., 593 F.3d 669, 673-74 (7th Cir. 2010) (“[B]eing a resident isn’t the same thing
as being a citizen, that is to say, a domiciliary . . . . [A] court may not draw conclusions
about the citizenship of [parties] based on things like their phone numbers and mailing
addresses.”). See also Heinen, 671 F.3d at 670 (“‘[C]itizenship’ for the purpose of 28

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U.S.C. § 1332 depends on domicile rather than residence.”); Macken ex rel. Macken v.
Jensen, 333 F.3d 797, 799 (7th Cir. 2003); McMahon v. Bunn-O-Matic Corp., 150 F.3d
651, 653 (7th Cir. 1998). Thus, plaintiff Chidester-Roesch must identify not just where she
lives, but whether she intends to remain there.
Second, because plaintiff Chidester-Roesch is suing on her own behalf as well as in
her capacity as the legal representative of the estates of Dennis Chidester and Carolyn
Chidester, it is necessary to determine not only Chidester-Roesch’s citizenship, but also the
citizenship of the decedents at the time they died. 28 U.S.C. § 1332(c)(2) (“[T]he legal
representative of the estate of a decedent shall be deemed to be a citizen only of the same
State as the decedent.”); Hunter v. Amin, 583 F.3d 486, 491-92 (7th Cir. 2009) (no subject
matter jurisdiction under § 1332 in case brought by representative of estate without showing
decedent’s citizenship at time of death). Plaintiffs say nothing about the citizenship of
Dennis and Carolyn. It may be that they were citizens of the state in which their estate is
pending, but I cannot simply assume that.
With respect to the citizenship of defendants, plaintiff alleges that defendant Triangle
is a “foreign corporation” with a principal place of business in Oklahoma; defendant Camp
Douglas is a “Wisconsin membership cooperative” with a principal place of business in
Wisconsin; and defendant United Healthcare is a “foreign corporation” with a principal
place of business in Minnesota. (It is not necessary to determine the citizenship of the third
party defendants. 28 U.S.C. § 1367(a); Aurora Loan Services, Inc. v. Craddieth, 442 F.3d
1018, 1025 (7th Cir. 2006); Fidelity & Deposit Co. of Maryland v. City of Sheboygan Falls,

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713 F.2d 1261, 1266 (7th Cir. 1983).) Plaintiff’s allegations are inadequate with respect
to each of these defendants.
With respect to defendants Triangle and United Healthcare, corporations are citizens
of the states in which they are incorporated and the states in which they maintain their
principal place of business. 28 U.S.C. § 1332(c)(1). Although plaintiffs identify defendants’
principal places of business, they do not say where the defendants are incorporated.
With respect to defendant Douglas Camp, plaintiff does not say explicitly whether
it is incorporated. If it is, plaintiff must identify its state of incorporation.

Otherwise,

plaintiff must identify the citizenship of each of defendant Douglas Camp’s members.
Indiana Gas Co., Inc. v. Home Insurance Co., 141 F.3d 314, 316 (7th Cir. 1998)
(“Unincorporated business entities . . . are treated as citizens of every jurisdiction in which
any equity investor or member is a citizen . . . . Membership associations such as labor
unions, joint stock companies, and joint ventures take the citizenship of each member.”).
Finally, I note that defendant United Healthcare may be aligned improperly.
Generally, the fundamental question regarding proper alignment is whether that party’s
interests are adverse to the plaintiff’s. American Motorists Insurance Co. v. Trane Co., 657
F.2d 146, 151 (7th Cir. 1981); Estate of Pickard ex rel. Pickard v. Wisconsin Central Ltd.,
300 F. Supp. 2d 776 (W.D. Wis. 2002).

If the only reason plaintiff named United

Healthcare is that it may be entitled to reimbursement in the event that plaintiff obtains
damages from the other defendants, it would be in United Healthcare’s interest for plaintiff
to prevail on her claims, suggesting that plaintiff and United Healthcare should be on the

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same side. E.g., Paulson v. Wisconsin Central, Ltd. No. 11-cv-303-bbc, slip op. at 3 (W.D.
Wis. Jul. 19, 2011) (insurance company subrogated to plaintiff’s rights against defendant
properly aligned as plaintiff); Frahm v. Marshfield Clinic,

2007 WL 3287841, *2

(W.D.Wis. Nov. 7, 2007) (realigning insurance company as plaintiff because its “only
interest in this lawsuit is in recovering money it has already paid to plaintiff; it may be
entitled to do so if plaintiff is successful in her claims against defendants”). See also In re
Novak, 932 F.2d 1397, 1408 (11th Cir. 1991) ("[I]nsurers generally have litigation interests
aligned with their insured's interests: the insurer either must indemnify its insured (the
defendant) or has subrogation rights to any judgment secured by its insured (the plaintiff).").
It may be that it will make no difference under § 1332 whether defendant United
Healthcare is aligned as a defendant or a plaintiff. However, in the event that plaintiff’s
response to this order shows that United Healthcare’s citizenship is the same as one of the
other parties, plaintiff should be prepared to explain how she believes United Healthcare
should be aligned.

ORDER
IT IS ORDERED that plaintiff Jennifer Chidester-Roesch may have until November
25, 2013 to show that this court may exercise subject matter jurisdiction as discussed in this
order. If plaintiff does not respond by that date, I will dismiss the case for lack of subject

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matter jurisdiction.
Entered this 7th day of November, 2013.
BY THE COURT:
/s/
__________________________________
BARBARA B. CRABB
District Judge

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