Germaine, John et al v. Sussek Machine Corporation et al

Filing 9

ORDER that this case is DISMISSED for lack of subject matter jurisdiction. The clerk of court is directed to enter judgment accordingly. Signed by District Judge Barbara B. Crabb on 3/19/2014. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - JOHN W. GERMAINE and
XIAOHONG ZHANG GERMAINE,
ORDER
Plaintiff,
13-cv-824-bbc
v.
SUSSEK MACHINE CORPORATION
and CHRISTOPHER SUSSEK,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Pro se plaintiffs John Germaine and Xiaohong Zhang-Germaine have filed a proposed
complaint. Because plaintiffs are proceeding in forma pauperis, I am required to screen the
complaint under 28 U.S.C. § 1915 to determine whether they may proceed with the case.
Plaintiffs do not identify a legal theory in their complaint, but I understand them to
be raising a claim for breach of contract. Plaintiffs allege that they each had a five-year
employment contract with defendants Christopher Sussek and Sussek Machine Corporation,
but defendants terminated the contract without just cause.
Although plaintiffs include references to “harassment” and “retaliation” in their
complaint and they cite various federal laws relating to employment discrimination, I do not
understand plaintiffs to be raising any discrimination claims in their complaint, for two
reasons. First, plaintiffs do not allege any facts that would allow the drawing of an inference

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that they engaged in conduct protected by federal law for the purpose of a retaliation claim
or that defendants subjected them to severe or pervasive harassment for a reason prohibited
by federal law. Ellis v. CCA of Tennessee LLC, 650 F.3d 640, 647 (7th Cir. 2011);
Tomanovich v. City of Indianapolis, 457 F.3d 656, 663 (7th Cir. 2006). Second, in another
case plaintiffs filed at the same time as this one, Germaine v. Hawks, Quindel, Ehlke &
Perry, S.C., No. 13-cv-823-bbc (W.D. Wis.), plaintiffs allege that they started administrative
proceedings against defendants for employment discrimination but plaintiffs never finished
those proceedings as a result of malpractice by their lawyers. This suggests that plaintiffs
never received a “right to sue” letter from the agency, which is a prerequisite to filing a
discrimination claim under most federal statutes. Hill v. Potter, 352 F.3d 1142, 1145 (7th
Cir. 2003).
This court’s authority to hear claims like those in this case is limited. Generally, a
federal court may hear a case if it arises under federal law, 28 U.S.C. § 1331, or if the parties
are citizens of different states and the amount in controversy is greater than $75,000, 28
U.S.C. § 1332. As discussed above, I do not understand plaintiffs to be raising any federal
claims in this case.
With respect to § 1332, plaintiffs have not alleged facts in their complaint showing
that they meet the requirements of that statute. Even if I assume that plaintiffs could
recover more than $75,000, I cannot infer from plaintiffs’ allegations that plaintiffs and
defendants are citizens of different states.
“Citizenship” has a specialized meaning under § 1332. An individual is a citizen of

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the state where he or she is “domiciled,” which means “the state in which a person intends
to live over the long run.” Heinen v. Northrop Grumman Corp., 671 F.3d 669, 670 (7th
Cir. 2012). A corporation such as defendant Sussek Machine is a citizen of the state where
it is incorporated and where its principal place of business is. Smoot v. Mazda Motors of
America, Inc., 469 F.3d 675, 676 (7th Cir. 2006).
In this case, plaintiffs have not included allegations in their complaint about domicile,
principal place of business or state of incorporation, but they list Wisconsin addresses for
all of the parties, which suggests that the parties may be citizens of Wisconsin. If plaintiffs
and defendants are citizens of the same state, I cannot exercise jurisdiction over plaintiffs’
claims.
Under most circumstances, I would give plaintiffs an opportunity to amend their
complaint to include the missing facts about jurisdiction. However, I cannot do that in this
case because another federal court already has concluded that it does not have jurisdiction
over the same claims. In Germaine v. Sussek Machine Corporation, No. 13-c-866 (E.D.
Wis. Sept. 12, 2013), the court dismissed the case because plaintiffs were raising state law
claims for breach of contract, but they failed to show diversity of citizenship between
plaintiffs and defendants. If plaintiffs disagreed with that ruling, their remedy was to file an
appeal with the Court of Appeals for the Seventh Circuit. They may not avoid the other
court’s ruling by filing another lawsuit in another federal court. Georgakis v. Illinois State
University, 722 F.3d 1075, 1077 (7th Cir. 2013); Orlando Residence, Ltd. v. GP Credit Co.,
LLC, 553 F.3d 550, 556 (7th Cir. 2009). If plaintiffs wish to proceed with their claims, they

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will have to file a lawsuit in state court.

ORDER
IT IS ORDERED that this case is DISMISSED for lack of subject matter jurisdiction.
The clerk of court is directed to enter judgment accordingly.
Entered this 19th day of March, 2014.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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