United States District Court, E.D. Wisconsin
PHILIP EMIABIATA and SYLVIA EMIABATA, d/b/a NOVA EXPRESS, Plaintiffs,
HALLMARK COUNTY MUTUAL INSURANCE and PMA INSURANCE GROUP, Defendants.
ORDER DISMISSING CASE FOR LACK OF JURISDICTION, AND
DENYING AS MOOT THE PLAINTIFFS' MOTIONS TO PROCEED
WITHOUT PREPAYING THE FILING FEE (DKT. NOS. 2 AND 5)
PAMELA PEPPER United States District Judge.
plaintiffs filed their complaint in federal court, alleging
that the defendant insurance companies engaged in bad faith
in denying their claims and misinterpreted their insurance
policies. Dkt. No. 1. The court could find no federal basis
for the plaintiff's claims; they appeared to sound in
contract and tort law. Dkt. No. 8 at 5. That meant that the
only other basis for the court to exercise jurisdiction over
the plaintiff claims was if the complaint met the diversity
requirements of 28 U.S.C. §1332. The court, on its own,
scheduled an evidentiary hearing to take testimony from the
plaintiffs, because it was concerned that it did not have
diversity jurisdiction over the claims in the complaint. Dkt.
No. 8 at 7-9. Based on the testimony and arguments the
plaintiffs provided at that hearing, the court will dismissed
the case for lack of diversity jurisdiction.
Philip Emiabata testified at the evidentiary hearing. Dkt.
No. 11. He testified that the couple's permanent
residence was in Texas, and that he ran a trucking business
out of their home. He told the court that the trucks were
licensed in Texas, and that his commercial driver's
license was issued by the state of Texas. He testified that
the couple filed their taxes in Texas, but noted that the
trucking business also owed taxes in other states in which it
did business. The trucking business, the plaintiff testified,
is a sole proprietorship and that he is the sole owner.
plaintiffs represented in the complaint that they were dual
citizens of Texas and Wisconsin. Dkt. No. 1 at 1. The
plaintiff told the court that the trucking business brought
him through Illinois to Wisconsin with some frequency. During
summer, which the plaintiff testified was the company's
peak season, the plaintiff might be in Wisconsin a few times
a week, maybe for a few days at a time. He indicates that he
sometimes would sleep in his truck while in Wisconsin, or
sometimes in a hotel. Dkt. No. 11. The court did not place
Sylvia Emiabata under oath, but she told the court that the
company did a significant amount of business in Wisconsin.
the complaint was silent as to the citizenship of the two
defendants, the court looked into that question itself. The
court found a case in the Southern District of Texas in which
defendant Hallmark was a party; pleadings in that case
indicated that Hallmark was incorporated in Texas and had its
principal place of business there. Davis v. Union Pac.
R.R. Co., Case No. 12-cv-212, Dkt. No. 33, Hallmark
County Mut. Ins. Co.'s Complaint in Intervention (S.D.
Tex. June 19, 2015). The court found a case from the Eastern
District of Pennsylvania which indicated that defendant PMA
was incorporated in Pennsylvania and had its principal place
of business there. PMA Ins. Group v. Feuer, Case No.
13-cv-371, Dkt. No. 1, Complaint (E.D. Pa. Jan. 23, 2013).
federal district court to exercise jurisdiction on the basis
of diversity citizenship, complete diversity between the
parties must exist at the time the complaint is filed. 28
U.S.C. §1332(a)(1). If the plaintiffs share citizenship
with either of the defendants, the parties are not diverse
for purposes of subject matter jurisdiction.
individual has citizenship in only one state: the state where
the citizen is domiciled. “An individual who resides in
more than one State is regarded, for purposes of federal
subject-matter (diversity) jurisdiction, as a citizen of but
one State.” Wachovia Bank, N.A. v. Schmidt,
546 U.S. 303, 318 (2006). Domicile has two elements: (1)
physical presence or residence, and (2) an intent to remain
in the state. Midwest Transit, Inc. v. Hicks, 70 F.
App'x 205, 208 (7th Cir. 2003). This is a simple analysis
in a case in which a party resides in and intends to remain
in the same state, but it can be more complicated if a party
has multiple residences in different states.
In more complex cases, courts have tried to glean intent from
the following factors: current residence, voting registration
and voting practices, location of personal and real property,
location of financial accounts, membership in unions and
other associations, place of employment, driver's license
and automobile registration, and tax payments.
Id. The party seeking to establish jurisdiction
bears the burden of proof. Id. A corporate entity is
a citizen of the state where it is incorporated and the state
in which its principal place of business is located. 28
U.S.C. §1332(c)(1); Hertz Corp. v.
Friend, 559 U.S. 77, 80 (2010).
plaintiffs do not, as they asserted in their complaint, have
dual citizenship. They are citizens of Texas-the same state
in which defendant Hallmark is a citizen. Their residence is
in Texas. Mr. Emiabata's business, while it requires him
to travel to other states, has its headquarters in Texas. His
trucks are licensed in Texas, and his CDL is issued by the
state of Texas. The couple pays income taxes in Texas
(although the business has to pay taxes in other
states where Mr. Emiabata travels). The plaintiffs, who have
the burden of showing diversity, have provided the court with
no evidence that they own property in Wisconsin, have a
residence in Wisconsin (Mr. Emiabata sleeping in his truck
here notwithstanding), vote here, have bank accounts here,
have jobs here (although Mr. Emiabata travels here with some
frequency), hold Wisconsin licenses, or pay Wisconsin income
taxes. Nor have they provided the court with any evidence
that they intend to remain in the state of Wisconsin
plaintiffs are citizens, and residents, of the state of
Texas. Because defendant Hallmark also is a citizen of the
state of Texas, diversity does not exist. Because the parties
are not diverse, the court has no jurisdiction, and must
dismiss the case.
court ORDERS that this case is DISMISSED for lack of
subject-matter (both federal question and diversity)
jurisdiction. The court ORDERS that the plaintiffs'
motions to proceed without ...