Foote, James v. Polk, John et al

Filing 9

ORDER that plaintiff James F. Foote may have until December 23, 2016 to file an amended complaint that clarifies each parties' citizenship and establishes that this court has subject matter jurisdiction over his claims. Signed by Magistrate Judge Stephen L. Crocker on 12/6/2016. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE W ESTERN DISTRICT OF W ISCONSIN
JAMES F. FOOTE,
Plaintiff,

OPINION and ORDER

v.
Case No. 16-cv-641-wmc
JAMES A. POLK, POLKS MEAT
PRODUCTS and INDIANHEAD
FOOD DISTRIBUTOR,
Defendants.

Pro se plaintiff James F. Foote, an inmate at the Stanley Correctional Institution, has
filed a proposed lawsuit against defendants James A. Polk, Polks M eat Products and
Indianhead Food Distributor. He alleges that he injured his mouth while eating a sausage
that was processed by Polks Meat Products and distributed by Indianhead Food. He seeks to
bring state law claims for negligence, strict liability and violation of the implied warranty of
merchantability. Normally, the next step would be for the court to screen Foote’s complaint
under 28 U.S.C. § 1915A. Before doing so, however, the court must address a jurisdictional
concern.
“Federal courts are courts of limited jurisdiction.” Int’l Union of Operating Eng’rs, Local
150 v. W ard, 563 F.3d 276, 280 (7th Cir. 2009) (citation omitted). Generally, federal courts
like this one may only exercise jurisdiction over a case in one of two situations: (1) the
plaintiff brings a claim that arises under federal law, 28 U.S.C. § 1331; or (2) the plaintiff
and defendants are citizens of different states and the amount in controversy is greater than
$75,000. 28 U.S.C. § 1332. Here, Foote is not bringing any federal claims, so the only way
to invoke this court’s jurisdiction is to establish diversity jurisdiction under § 1332.

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The court cannot determine from the allegations in Foote’s complaint whether it has
matter jurisdiction over his claims. Foote states that he is seeking $150,000 in damages, so
the amount in controversy is satisfied. However, Foote does not provide sufficient allegations
regarding the parties’ citizenship. W ith respect to the defendants, Foote alleges that James
Polk and Polks Meat Products are citizens of Mississippi and that Indianhead Food
Distributor is headquartered and located in Eau Claire, W isconsin. So far so good. However,
the problem is with Foote’s allegations regarding his own citizenship. Foote alleges only that
he resides at the Stanley Correctional Institution in Stanley, W isconsin. However, a prisoner
is a citizen of “the state of which he was a citizen before he was sent to prison unless he plans
to live elsewhere when he gets out, in which event it should be that state.”

Bontkowski v.

Smith, 305 F.3d 757, 763 (7th Cir. 2002). Therefore, Foote must provide information about
where he was a citizen prior to his incarceration or, to the extent it is a different state, where
he intends to live after he is released.
If Foote’s allegations regarding his own citizenship confirm that he is a citizen of
W isconsin (either because he lived here prior to his incarceration or because he intends to
remain after he is released), then that would mean both Foote and Indianhead Food are
citizens of W isconsin. Under those circumstances, this court would not have subject matter
jurisdiction over this dispute under § 1332 because the parties’ citizenship would not be
completely diverse.

Foote would need to pursue his state law claims in state court.

Accordingly, the court must determine the citizenship of each of the parties before this case
may proceed further.

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ORDER
IT IS ORDERED that plaintiff James F. Foote may have until December 23, 2016 to
file an amended complaint that clarifies each parties’ citizenship and establishes that this
court has subject matter jurisdiction over his claims.

If Foote fails to file an amended

complaint by that date, this case will be forwarded to the presiding judge for dismissal.

Entered this 6 th day of December, 2016.

BY THE COURT:
/s/
STEPHEN L. CROCKER
Magistrate Judge

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