United States District Court, E.D. Wisconsin
DECISION AND ORDER
ADELMAN District Judge.
December 7, 2015, the plaintiff, Chrisandra Lilly, filed a
complaint in this court pro se. One of the
defendants, Children's Hospital of Wisconsin, Inc.
(“CHW”), filed a motion for a more definite
statement under Federal Rule of Civil Procedure 12(e). On May
16, 2016, I granted CHW's motion, saying, “[I]t is
impossible to make out what claim or claims plaintiff is
advancing.” Decision & Order, ECF No. 26, at 1. I
ordered Lilly to file an amended complaint no later than June
17, 2016, which she did. Before me now are motions filed by
CHW and CryoLife, Inc., another of the original defendants,
to dismiss Lilly's amended complaint for lack of
subject-matter jurisdiction and failure to state a claim upon
which relief can be granted. See Fed. R. Civ. P.
amended complaint contains the following factual allegations:
(1) various physicians at CHW performed medical procedures on
her minor daughter without consent in many cases and without
medical justification in others, (2) one physician denied her
daughter treatment overnight resulting in a collapsed lung,
(3) several physicians committed fraud by stating in a
published article about her daughter's treatment that her
daughter had received a procedure that was not actually
performed, (4) her daughter was made a medical research
subject without her knowledge, and (5) CryoLife, Inc. used a
product on her daughter that was not FDA-approved.
I note that Lilly does not appear to be an attorney and
cannot bring claims on her daughter's behalf (or on
behalf of her daughter's estate) pro se.
See 28 U.S.C. § 1654; Fed.R.Civ.P. 17(c); Civil
L. R. 83(b) (E.D. Wis.); Elustra v. Mineo, 595 F.3d
699, 705-06 (7th Cir. 2010); Navin v. Park Ridge Sch.
Dist. 64, 270 F.3d 1147, 1149 (7th Cir. 2001); Lewis
v. Lenc-Smith Mfg. Co., 784 F.2d 829, 830-31 (7th Cir.
1986)). Any claims that Lilly raises on behalf of her
daughter (or her daughter's estate) must be dismissed
unless an attorney admitted to practice in this court appears
on Lilly's behalf.
CHW argues that Lilly has not sufficiently alleged a basis
for subject-matter jurisdiction in this case. See
Fed. R. Civ. P. 12(b)(1). This is a “facial
challenge” to subject-matter jurisdiction. See
Silha v. ACT, Inc., 807 F.3d 169, 173 (7th Cir. 2015).
“In reviewing a facial challenge, the court must accept
all well-pleaded factual allegations as true and draw all
reasonable inferences in favor of the plaintiff.”
Id. (citing Apex Digital, Inc. v. Sears, Roebuck
& Co., 572 F.3d 440, 443-44 (7th Cir. 2009)).
“[T]o survive a challenge . . . under Rule 12(b)(1), a
plaintiff must plead sufficient factual allegations, taken as
true, that ‘plausibly suggest'” that
subject-matter jurisdiction exists. Berger v. NCAA,
No. 16-1558, 2016 WL 7051905, at *1 (7th Cir. Dec. 5, 2016)
(citing Silha, 807 F.3d at 174).
general, federal subject-matter jurisdiction can be premised
on a federal question or on diversity of citizenship.
See 28 U.S.C. §§ 1331, 1332. Federal
question jurisdiction exists over cases “arising under
the Constitution, laws, or treaties of the United
States.” § 1331. Diversity jurisdiction exists
where the parties are citizens of different states and the
amount in controversy exceeds $75, 000. § 1332.
Diversity jurisdiction requires “complete diversity,
” that is, no plaintiff can be a citizen of the same
state as any defendant. Matchett v. Wold, 818 F.2d
574, 575 (7th Cir. 1987).
cannot discern a basis for federal question jurisdiction from
Lilly's amended complaint. At best, she raises state law
tort claims-for medical malpractice, wrongful death, fraud,
battery, intentional infliction of emotional distress,
etc.-not federal claims. Also, Lilly's amended complaint
does not plausibly suggest that diversity jurisdiction
exists. Lilly alleges that she is a citizen of Wisconsin. She
repeatedly notes CHW's Wisconsin address (9000 West
Wisconsin Avenue, Milwaukee, Wisconsin 53226) but does not
otherwise allege CHW's citizenship. CHW is the only
defendant included in the caption of Lilly's amended
complaint. She mentions several other individuals and
entities that are not included in the caption but does not
allege their citizenship either, and it is not clear whether
she is bringing this suit against CHW alone or against these
other individuals and entities, as well.
these entities is CryoLife, Inc., which Lilly named as a
defendant in her original complaint but does not include in
the caption of her amended complaint. CryoLife, Inc. filed a
motion to dismiss for lack of subject-matter jurisdiction and
failure to state a claim, but I cannot discern whether
CryoLife, Inc. is still a party to this action and need not
consider its motion given that Lilly's amended complaint
otherwise fails to survive CHW's facial challenge to
federal subject-matter jurisdiction.
amended complaint fails to plausibly suggest that federal
subject-matter jurisdiction exists in this case. Lilly has
already had an opportunity to amend her pleading to raise
cognizable claims over which this court can exercise
jurisdiction. She has failed to do so, but I will give her
another opportunity. Lilly may file a second amended
complaint curing the defects described above by January 20,
2016, if she wishes to proceed with this action. If she does
not, I will dismiss this action for lack of diligence under
this court's Civil Local Rule 41(c). Plaintiff should
keep in mind that the second amended complaint will supersede
her first amended complaint, and thus, she should not
incorporate or reference the first amended complaint in any
IT IS ORDERED that CHW's motion to dismiss (ECF No. 29)
FURTHER ORDERED that Lilly's amended complaint is
DISMISSED without prejudice and with leave to amend. Lilly
may file a second amended complaint by January 20, 2017
curing the defects described above. If she does not, I will
dismiss this action for lack of diligence under this
court's Civil Local Rule 41(c).
FURTHER ORDERED that Lilly may not proceed with any claims on
behalf of her daughter or her daughter's estate unless an
attorney admitted to ...