Fogo, Colleen et al v. Panera, LLC
Filing
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OPINION AND ORDER Regarding Jurisdiction. Proof of Diversity Citizenship due 12/19/2014. Signed by District Judge William M. Conley on 12/5/14. (jat)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
COLLEEN FOGO,
Plaintiff,
OPINION AND ORDER
PHYSICIANS PLUS INSURANCE
CORPORATION,
14-cv-824-wmc
Involuntary Plaintiff,
v.
PANERA, LLC,
Defendant.
In this civil action, plaintiff Colleen Fogo alleges that defendant Panera, LLC was
negligent when it served her a poisoned beverage, resulting in pain and suffering and
medical expenses.
(Compl. (dkt. #1-2).)
Invoking this court’s diversity jurisdiction,
defendant Panera, LLC has removed this action pursuant to 28 U.S.C. § 1446(b) and 28
U.S.C. § 1332(a)(1). (Not. of Removal (dkt. #1) ¶¶ 2, 7.) Because the allegations in the
notice of removal and complaint are insufficient to determine whether diversity
jurisdiction actually exists, defendant will be given an opportunity to file an amended
notice of removal containing the necessary allegations.
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).
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Unless a complaint alleges complete diversity of citizenship among the parties and an
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, defendant contends that diversity jurisdiction exists because (1) the amount
in controversy exceeds $75,000 and (2) the parties are diverse. (Not. of Removal (dkt.
#1) ¶ 7.) 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.
Unfortunately, defendant’s allegations as to its own citizenship prevent this court from
determining whether there is complete diversity.
“The citizenship of an LLC is the citizenship of each of its members,” yet
defendant has not alleged the citizenship of its members. Camico Mut. Ins. Co. v. Citizens
Bank, 474 F.3d 989, 992 (7th Cir. 2007). Instead, defendant alleges that it is “organized
in the State of Delaware” and “maintains its principal place of business in St. Louis,
Missouri.” (Not. of Removal (dkt. #1) ¶ 5.)
As the Seventh Circuit has instructed,
however, this information is wholly irrelevant in deciding the citizenship of a limited
liability company. Hukic v. Aurora Loan Serv., 588 F.3d 420, 429 (7th Cir. 2009).
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The court also notes that defendant failed to allege the citizenship of involuntary
plaintiff Physicians Plus Insurance Corporation. To the extent defendant asserts that
Physicians Plus is a nominal plaintiff and need not be considered by this court in
determining diversity, defendant should so state and allege factual support for this
assertion. See Navarro Sav. Ass’n v. Lee, 446 U.S. 458, 461 (1980) (“[A] federal court
must disregard nominal or formal parties and rest jurisdiction only upon the citizenship
of real parties to the controversy.”).
Before dismissing this action for lack of subject matter jurisdiction, defendant will
be given leave to file within 14 days an amended notice of removal that establishes
subject matter jurisdiction by alleging the names and citizenship of each member of the
defendant LLC. In alleging an LLC’s citizenship, defendant should be aware that if the
member or members of the LLCs are themselves a limited liability company, partnership,
or other similar entity, then the citizenship of those members and partners must also be
alleged as well. See Meyerson v. Harrah’s E. Chi. Casino, 299 F.3d 616, 617 (7th Cir.
2002) (“[T]he citizenship of unincorporated associations must be traced through
however many layers of partners or members there may be.”).
ORDER
IT IS ORDERED that:
1) Defendant shall have until December 19, 2014, to file and serve an amended
notice of removal 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 remand of this matter for lack of
subject matter jurisdiction.
Entered this 5th day of December, 2014.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge
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