United States District Court, W.D. Wisconsin
JOSHUA MILLIGAN, by his legal guardian and conservator, SUSAN THOMAS, Plaintiff,
IOWA DEPARTMENT OF HUMAN SERVICES, Subrogated Defendant, and ROCK ON THE RIVER, INC., SCOTT SHECKLER, JILL SHECKLER, SHECKLER MANAGEMENT, INC., COUNTRY ON THE RIVER, INC., ABC CORP., DEF CORP., GHI CORP., JKL INSURANCE COMPANY, MNO INSURANCE COMPANY, and PQR INSURANCE COMPANY, Defendants.
D. PETERSON District Judge.
attending the music festival "Rock on the River" in
Bridgeport, Wisconsin, plaintiff Joshua Milligan was
assaulted and seriously injured. Milligan alleges that
defendants Rock on the River, Inc., Scott Sheckler, Jill
Sheckler, Sheckler Management, Inc., and Country on the
River, Inc. (collectively, defendants) owned, organized, and
oversaw the festival, failed to maintain a safe place, and,
as a result, are responsible for Milligan's injuries.
Subrogated defendant the Iowa Department of Human Services
(IDHS) paid for medical care, treatment, and other services
that Milligan received in connection with the underlying
assault. Milligan contends that IDHS's subrogation
interests, however, are subordinate to his, and he asks that
those interests be "honored only after [a] determination
has been made that the Plaintiff has been made whole."
Dkt. 1, ¶ 4.
invokes this court's subject matter jurisdiction pursuant
to 28 U.S.C. § 1332. But because the allegations in the
complaint are insufficient to determine whether diversity
jurisdiction actually exists, the court will direct Milligan
to file an amended complaint containing the necessary
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) (citation
omitted). 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.
Milligan 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, ¶ 1. For the latter to be true, however,
Milligan cannot be a citizen of the same state as any
defendant. Smart, 562 F.3d at 803. Milligan's
allegations regarding several parties' citizenships are
insufficient to allow the court to determine whether this is
alleges that he and his legal guardian, Susan Thomas, reside
in Iowa. But this allegation does not establish
Milligan's citizenship. "Residency is meaningless
for purposes of diversity jurisdiction; an individual's
citizenship is determined by his or her domicile."
Lake v. Hezebicks, No. 14-cv-143, 2014 WL 1874853,
at *1 (N.D. Ind. May 9, 2014) (citing Dakuras v.
Edwards, 312 F.3d 256, 258 (7th Cir. 2002)). Milligan
also alleges that defendants Scott and Jill Sheckler reside
in Wisconsin. Again, residency is not the same as
citizenship, and Milligan will need to amend his complaint to
properly allege his and the Shecklers' respective
Milligan may have a bigger problem than having to clarify the
parties' citizenships: IDHS, the so-called
"subrogated defendant, " may destroy diversity.
"Under the rule of complete diversity, if there are
residents of the same state on both sides of a lawsuit, the
suit cannot be maintained under the diversity jurisdiction
even when there is also a nonresident party."
Hanover Ins. Co. v. Brandt Const. Co., No.
11-cv-4050, 2011 WL 6648232, at *5 (C.D. Ill.Dec. 21, 2011)
(quoting Krueger v. Cartwright, 996 F.3d 928, 931
(7th Cir. 1993)). The court assumes that both Milligan and
IDHS are citizens of Iowa.
when determining whether complete diversity exists, the court
considers only those parties "who are real and
substantial parties to the controversy." Navarro
Savings Ass'n v. Lee, 446 U.S. 458, 461 (1980);
Matchett v. Wold, 818 F.2d 574, 576 (7th Cir. 1987)
("The addition to a lawsuit of a purely nominal
party-[for example, ] the holder of the stakes of the dispute
between the plaintiff and the original defendant-does not
affect diversity jurisdiction."). "A defendant is a
nominal party if there is no reasonable basis for predicting
that it will be held liable." Vandervest v. Wis.
Cent., Ltd., 936 F.Supp. 601, 604 (E.D. Wis. 1996).
Where state law creates a separate and distinct cause of
action against a party, that party is not a nominal
Milligan alleges that defendants are liable for the personal
injuries that he sustained and the medical care that he
received following the assault, and that IDHS has paid
benefits to cover those expenses. Obviously Milligan does not
ask the court to hold IDHS liable for his injuries. But
Milligan alleges that "there may be insufficient funds
from which to honor such subrogation/reimbursement claims and
that the interest of the Iowa Department of Human Services is
subordinate to the interests of Plaintiff, and if applicable,
shall be honored only after [a] determination has been made
that the Plaintiff has been made whole." Dkt. 1, ¶
4. Based on these allegations, it is unclear whether Milligan
brings a claim against IDHS (for declaratory judgment,
perhaps, regarding the priority of their interests in any
potential recovery). If so, then IDHS is more than a nominal
defendant, which would jeopardize the court's subject
matter jurisdiction over this case.
court will direct Milligan to file an amended complaint that
contains allegations sufficient to determine: (1) each
party's citizenship; (2) whether Milligan brings any
claims against IDHS; and (3) whether IDHS is a party in
interest or a nominal party. Milligan will also have to plead
an amount in controversy, which he neglected to do in his
1. Plaintiff Joshua Milligan, by his legal guardian and
conservator, Susan Thomas, may have until August 4, 2016, 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.
2. Failure to timely amend will result in prompt dismissal of
this matter for lack of ...