Kopplin, Tara v. Acuity, A Mutual Insurance Company

Filing 8

ORDER Regarding Jurisdiction. Defendant Acuity may have until 6/18/2018, 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. Signed by District Judge James D. Peterson on 6/4/2018. (kwf)

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

TARA KOPPLIN,
Plaintiff,
v.
ACUITY, A MUTUAL INSURANCE COMPANY,

ORDER
18-cv-401-jdp

Defendant.
Kevin Kopplin died in an automobile accident. He was the passenger in a car owned by
Andrew Kopplin and driven by Daniel Kopplin, both of whom were insured by defendant
ACUITY, a Mutual Insurance Company. Kevin’s surviving spouse, plaintiff Tara Kopplin,
individually and as personal representative of his estate, sued ACUITY in Wisconsin state court
to recover damages for his wrongful death.
ACUITY removed the case to this court under 28 U.S.C. §§ 1332, 1441(a), and 1446,
invoking this court’s diversity jurisdiction. Dkt. 1. Because the allegations in the notice of
removal and complaint are insufficient to determine whether diversity jurisdiction actually
exists, the court will direct ACUITY to file an amended notice of removal containing the
necessary allegations.
“Federal courts are courts of limited jurisdiction.” Int’l Union of Operating Eng’rs, Local
150 v. Ward, 563 F.3d 276, 280 (7th Cir. 2009). Unless the party invoking federal jurisdiction
establishes complete diversity of citizenship among the parties and an amount in controversy
exceeding $75,000, or raises a federal question, the court must dismiss the case for lack of
jurisdiction. Smart v. Local 702 Int’l Bhd. of Elec. Workers, 562 F.3d 798, 802 (7th Cir. 2009).
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). The party invoking federal jurisdiction bears the burden of establishing that
jurisdiction is proper. Smart, 562 F.3d at 802–03.
ACUITY alleges that diversity jurisdiction exists because: (1) the amount in controversy
exceeds $75,000; and (2) the parties are completely diverse in citizenship. Dkt. 1. For the latter
to be true, however, ACUITY cannot be a citizen of the same state as any plaintiff. Smart, 562
F.3d at 803. The allegations regarding the parties’ citizenships are insufficient to allow the
court to determine whether this is the case for two reasons.
First, the citizenship of Kevin Kopplin has not been established. Tara Kopplin has sued
ACUITY both individually and as the legal representative of Kevin’s estate, so her citizenship
in both capacities must be established. See Hunter v. Amin, 583 F.3d 486, 491 (7th Cir. 2009).
ACUITY alleges that Tara is a citizen of Minnesota, but an estate’s legal representative’s
citizenship is determined by the citizenship of the decedent. 28 U.S.C. § 1332(c)(2); Lindner
v. Union Pac. R. Co., 762 F.3d 568, 570 (7th Cir. 2014). So ACUITY must allege the citizenship
of Kevin Kopplin.
Second, the citizenship of both Andrew Kopplin and Daniel Kopplin has not been
established.

Kopplin’s

complaint

alleges

Wisconsin

residency

for

both,

but

“[r]esidency is meaningless for purposes of diversity jurisdiction; an individual's citizenship is
determined by his or her domicile.” Citizens State Bank v. Reliable Transporting LLC, No. 16-cv599-jdp, 2016 WL 4718019, at *2 (W.D. Wis. Sept. 9, 2016) (citing Dakuras v. Edwards, 312
F.3d 256, 258 (7th Cir. 2002)). And their respective citizenship is relevant because in a direct
action against an insurer, such as this, the insurer is deemed to be a citizen of “every State and
foreign state of which the insured is a citizen.” 28 U.S.C. § 1332(c)(1)(A).

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Before dismissing this action for lack of subject-matter jurisdiction, the court will allow
ACUITY to file an amended notice of removal that establishes subject matter jurisdiction. This
is a matter that could be resolved promptly with the cooperation of Tara Kopplin’s counsel,
which the court will expect.

ORDER
IT IS ORDERED that:
1. Defendant ACUITY may have until June 18, 2018, 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.
2. Failure to timely amend will result in prompt dismissal of this matter for lack of
subject matter jurisdiction.
Entered June 4, 2018.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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