Jones, Susan et al v. BMO Financial Corp. et al

Filing 9

ORDER granting 4 Motion to Dismiss. Plaintiffs' claims against defendant John Richardson are dismissed with prejudice. BMO Harris Bank N.A. is the proper name of defendant and the caption will be amended to reflect this. Defendant BMO Harris Bank has until August 10, 2016 to answer, move to dismiss, or otherwise respond to the amended complaint. Signed by District Judge William M. Conley on 7/27/2016. (jls)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
SUSAN C. JONES and THE ESTATE OF
BARBARA SIMANDL,
Plaintiffs,

OPINION AND ORDER

v.
BMO HARRIS BANK, N.A.,

16-cv-414-wmc

Defendant.
Defendants BMO Financial Corp. a/k/a BMO Financial Group d/b/a BMO Private
Bank and John Richardson filed a motion to dismiss plaintiffs Susan C. Jones and the
Estate of Barbara Simandl on two related grounds. (Dkt. #4.) First, defendants argue
that Richardson should not be named as a defendant at all, because he was simply acting
within the scope of his employment, and therefore he cannot be held personally liable.
(Defs.’ Br. (dkt. #5) 1.)

Indeed, in their notice of removal, defendants argue that

Richardson was actually fraudulently joined to defeat diversity jurisdiction in the first
place. (Not. of Removal (dkt. #1) ¶ 12.) Second, defendants contend that the only
proper bank defendant here is BMO Harris Bank N.A. (Id. at 2.) Plaintiffs failed to file
an opposition to the motion, implicitly acknowledging the merits of defendants’ motion.
As such, it is GRANTED.
Rather than dismissing this action, however, the court will instead dismiss the
claims asserted against John Richardson and amend the caption to reflect that the proper
defendant is BMO Harris Bank N.A., as shown above. Moreover, with the termination
of Richardson as a party, the court has jurisdiction over this action pursuant to 28 U.S.C.
§ 1332(a). Plaintiff Jones is a citizen of California; the Estate is a citizen of Wisconsin;

and defendant BMO Harris Bank is a citizen of the states of Delaware and Illinois.1 The
amount in controversy also exceeds $75,000.
ORDER
IT IS ORDERED that:
1) Defendants’ motion to dismiss the amended complaint (dkt. #4) is
GRANTED.
2) Plaintiffs’ claims against defendant John Richardson are dismissed with
prejudice. The clerk of court is directed to terminate Richardson as a
defendant.
3) The clerk of court is further directed to amend the caption to reflect that the
proper name of the defendant is “BMO Harris Bank N.A.” as shown above.
4) Defendant BMO Harris Bank has until August 10, 2016, to answer, move to
dismiss or otherwise respond to the amended complaint, including in any such
pleading a written affirmation of its place of incorporation and principal place
of business.
Entered this 27th day of July, 2016.
BY THE COURT:

/s/
__________________________________
WILLIAM M. CONLEY
District Judge

In the notice of removal, defendants represent that BMO Financial Corp. is a “Delaware
corporation with its principal place of business in Chicago, Illinois.” (Not. of Removal (dkt. #1) ¶
6.) The court understands that the proper defendant BMO Harris Bank N.A. is also a citizen of
Delaware and Illinois. If that is not the case, defendants should advise the court immediately.
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