Boisvert, Troy et al v. Lennox Hearth Products LLC

Filing 18

ORDER Regarding Jurisdiction. Amended complaint due 5/5/2014. Signed by District Judge William M. Conley on 4/21/14. (krj)

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

TROY BOISVERT and SHANNON BOISVERT,
Individually, and as Parents and Next Friends of
BRECKEN BOISVERT, Minor,
Plaintiffs,

OPINION AND ORDER
No. 14-cv-14-wmc

v.
LENNOX HEALTH PRODUCTS, LLC,
Defendant.

In this civil action, plaintiffs Troy and Shannon Boisvert, individually and as
parents of Brecken Boisvert, allege that defendant Lennox Health Products, LLC, was
negligent and strictly liable for injuries caused by a fireplace designed, manufactured and
sold by defendant Lennox Health Products LLC (“LHP”). (Compl. (dkt. #1).) Plaintiffs
allege that this court may exercise its diversity jurisdiction pursuant to 28 U.S.C. §
1332(a).

(Id. at ¶ 1.)

Because the allegations in the complaint are insufficient to

determine if this is so, plaintiffs will be given an opportunity to file an amended
complaint containing the necessary factual allegations to establish diversity jurisdiction.

OPINION
“Federal courts are courts of limited jurisdiction.” Int’l Union of Operating Eng’r,
Local 150, AFL-CIO v. Ward, 563 F.3d 276, 280 (7th Cir. 2009) (citation omitted).
Unless a complaint alleges complete diversity of citizenship among the parties and an

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amount in controversy exceeding $75,000, or raises a federal question, the case must be
dismissed for want of jurisdiction. Smart v. Local 702 Int’l Bhd. of Elec. Workers, 562 F.3d
798, 802 (7th Cir. 2009).

Because jurisdiction is limited, federal courts “have an

independent obligation to determine whether subject-matter jurisdiction exists, even
when no party challenges it.” Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010). Further, the
party seeking to invoke federal jurisdiction bears the burden of establishing that
jurisdiction is present. Smart, 562 F.3d at 802-03.
Here, plaintiffs contend that subject matter jurisdiction exists because (1) the
amount in controversy exceeds $75,000 and (2) the parties are diverse. (Compl (dkt.
#1) ¶ 1.) For the latter to be true, however, there must be complete diversity, meaning
plaintiff cannot be a citizen of the same state as any defendant. Smart, 562 F.3d at 803.
Plaintiffs’ allegations as to the parties’ citizenship prevent this court from determining if
this is so.
First, starting with defendant, “the citizenship of an LLC is the citizenship of each
of its members,” yet plaintiffs have not alleged sufficient information to determine
whether complete diversity exists here. Camico Mut. Ins. Co. v. Citizens Bank, 474 F.3d
989, 992 (7th Cir. 2007).

Indeed, the complaint lacks any allegations regarding the

names or the citizenship of any of defendant LHP’s members. Instead, plaintiffs allege
that “LHP is a Delaware Corporation with its principal place of business at 1508 Elm
Hill Pike, Suite 108. Nashville, TN 37210.”

(Compl. (dkt. #1) ¶ 4.)

The Seventh

Circuit instructs, however, that this information is wholly irrelevant in deciding the

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citizenship of a limited liability company. Hukic v. Aurora Loan Serv., 588 F.3d 420, 429
(7th Cir. 2009).
Plaintiffs also allege that they are “residents” of Wisconsin. (Compl. (dkt. #1) ¶
3.) Strictly speaking (and the Seventh Circuit has repeatedly advised lower courts that
we are speaking strictly), for an individual person, plaintiff must allege her domicile rather
than her residence. See Winforge, Inc. v. Coachmen Indus., Inc., 691 F.3d 856, 867 (7th Cir.
2012) (“An allegation of residence is not sufficient to establish citizenship, which
requires domicile.”). A person’s domicile is “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). As such, a person may have several residences, but only one domicile. Id.
Before dismissing this action for lack of subject matter jurisdiction, plaintiffs will
be given leave to file within 14 days an amended complaint which establishes subject
matter jurisdiction by alleging (1) the names and citizenship of each member of
defendant’s LLC; and (2) confirming plaintiffs are citizens (rather than simply residents)
of Wisconsin. In alleging the LLC’s citizenship, plaintiffs should be aware that if any
members of the LLCs are themselves a limited liability company, partnership, or other
similar entity, then the individual citizenship of each of those members and partners
must also be alleged as well: “the citizenship of unincorporated associations must be
traced through however many layers of partners or members there may be.” Meyerson v.
Harrah’s E. Chi. Casino, 299 F.3d 616, 617 (7th Cir. 2002).

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ORDER
IT IS ORDERED that:
1) plaintiffs shall have until May 5, 2014, 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
2) failure to amend timely shall result in prompt dismissal of this matter for lack
of subject matter jurisdiction.
Entered this 21st day of April, 2014.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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