United States District Court, W.D. Wisconsin
JOSHUA O. BARNACK, Plaintiff,
E-TRIPLE J, INC. d/b/aThe Neighborly Bar and WILSON MUTUAL INSURANCE CO., Defendant.
D. PETERSON District Judge
plaintiff Joshua Barnack is proceeding on a claim that
defendant E-Triple J, Inc. was negligent in failing to
protect him from the assault of another customer at
“The Neighborly Bar, ” which defendant owns.
Defendant Wilson Mutual Insurance is E-Triple J, Inc.'s
insurer. On October 6, 2016, defendants filed a motion for
summary judgment on the ground that E-Triple J was not
negligent because it had no reason to believe that the other
customer was going to attack plaintiff. Dkt. 22.
Plaintiff's deadline for opposing the motion was November
3, 2016, but the court has not received any response from
when a plaintiff does not respond to a defendant's motion
for summary judgment, the court still must decide whether the
defendant has shown that it is entitled to judgment as a
matter of law. Doe v. Cunningham, 30 F.3d 879, 882
(7th Cir. 1994). However, in reviewing defendants'
proposed findings, I uncovered a problem that must be
resolved before I can consider the merits of defendants'
motion. In particular, defendants did not set forth any
proposed findings of fact regarding subject matter
jurisdiction, as they were required to do. Dkt. 13,
Helpful Tips for Filing a Summary Judgment Motion
(“All facts necessary to sustain a party's position
on a motion for summary judgment must be explicitly proposed
as findings of fact. This includes facts establishing
jurisdiction.”). Further, a review of the complaint and
answer does not fill in the gap left by the summary judgment
plaintiff is bringing a state law claim, subject matter
jurisdiction arises under 28 U.S.C. § 1332, which
requires an amount in controversy more than $75, 000 and
complete diversity of citizenship between plaintiff and
defendants. Individuals are citizens of the state where they
are domiciled. Dakuras v. Edwards, 312 F.3d 256, 258
(7th Cir. 2002). The citizenship of business entities is
determined differently depending on the type of business it
is. Wise v. Wachovia Sec., LLC, 450 F.3d 265, 267
(7th Cir. 2006). Corporations are citizens of both the state
of their principal place of business and their state of
incorporation. Id. Unincorporated entities are
citizens of the states where their members are citizens.
say nothing about the amount in controversy or the
parties' citizenship in their proposed findings of fact.
In the complaint, plaintiff alleges that he suffered more
than $75, 000 in damages, Dkt. 1 at 1 and 4, that he is a
citizen of Minnesota, and that Wisconsin is the principal
place of business of both defendants. Id. at 1.
However, he does not say whether both companies are
incorporated and, if so, where. In any event, in their
answers, defendants denied plaintiff's allegations about
citizenship, Dkt. 3 and 8, so I cannot rely on the complaint
as evidence at the summary judgment stage. Brown v.
Advocate South Suburban Hosp., 700 F.3d 1101, 1104-05
(7th Cir. 2012).
federal court cannot consider the merits of a claim until the
parties have established jurisdiction, even if none of the
parties raise the issue. Sinochem Intern. Co. Ltd. v.
Malaysia Intern. Shipping Corp., 549 U.S. 422, 431
(2007) (“[A] federal court generally may not rule on
the merits of a case without first determining that it has
jurisdiction . . . . [The court] may not assume jurisdiction
for the purpose of deciding the merits of the case.”);
Schirmer v. Nagode, 621 F.3d 581, 584 (7th Cir.
2010) (A[W]e must consider this jurisdictional issue even
though the parties have not raised it.@).
plaintiff's allegations in his complaint are sufficient
to satisfy the amount in controversy requirement, Miller
v. Herman, 600 F.3d 726, 730 (7th Cir. 2010), I see no
admissible evidence in the record establishing the
citizenship of any of the parties. It is plaintiff's
burden to prove jurisdiction, Smart v. Local 702 Intern.
Broth. of Elec. Workers, 562 F.3d 798, 802-03 (7th Cir.
2009), but I will give both sides an opportunity to file
supplemental evidence regarding the parties' citizenship.
If neither side responds by the deadline or if the evidence
is insufficient, I will dismiss the case without prejudice
for lack of jurisdiction, which would allow plaintiff to
refile the case in state court.
ORDERED that the parties may have until January 19, 2017, to
submit supplemental evidence showing the state citizenship of
each party in this case. If the parties do not respond by the
deadline or fail to make the necessary ...