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Smith v. American Dental Professional Services

United States District Court, E.D. Wisconsin

March 27, 2018

CHARMANE SMITH, Plaintiff,
v.
AMERICAN DENTAL PROFESSIONAL SERVICES, Defendant.

          ORDER DENYING AS MOOT PLAINTIFF'S MOTION FOR TAXATION OF COSTS (DKT. NO. 9), DENYING AS MOOT PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT (DKT. NO. 11) AND DISMISSING THE CASE WITHOUT LEAVE TO AMEND FOR FAILURE TO STATE A CLAIM

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE

         I. Background

         On April 4, 2017, the plaintiff filed a complaint without the assistance of a lawyer. Dkt. No. 1. In that complaint, the plaintiff-a Tennessee resident- alleged that one of the defendants, Alane Holliday, performed various procedures on her, including pretending to take mouth x-rays, possibly taking an unrequested abdomen x-ray, showing the plaintiff films of x-rays that were not hers, and giving the plaintiff false diagnoses and advice. Id. at 1-2. The complaint was not on the court's form-the plaintiff created it, and titled it “Diversity Jurisdiction Pursuant to Title 28 U.S.C. (1332.” Id. at 1.

         The court screened the plaintiff's complaint on May 8, 2017. Dkt. No. 5. In the screening order, the court observed that while the plaintiff stated that she brought her claim under “diversity jurisdiction, ” she had not alleged complete diversity of citizenship. The plaintiff's original complaint said that she was a resident of Tennessee, that defendant Alane Holliday was a resident of Tennessee and that defendant American Dental Professional Services was a resident of Wisconsin. Id. at 1-2. The court explained to the plaintiff that, for a federal court to exercise its diversity jurisdiction under 28 U.S.C. §1332, the citizenship of each plaintiff must be diverse from the citizenship of each defendant. Id. at 2 (citing Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996)). The court explained that because the plaintiff had not alleged complete diversity of citizenship, the court could not consider the merits of her case. The court dismissed the complaint, but said that “if, within sixty days of the date of this order, the plaintiff files an amended complaint demonstrating either complete diversity or a federal claim, [the court] may reopen the case.” Id. at 2-3.

         On June 9, 2017, the plaintiff filed several items, including, (1) an amended complaint, dkt. no. 7; (2) an application for injunction, dkt. no. 8; and (3) a “Motion for Taxation of Costs and In Forma Pauperis, ” dkt. no. 9. About two and a half months later, the plaintiff filed several additional documents, including (1) a request for entry of default, dkt. no. 10; (2) a motion for default judgment, dkt. no. 11; and (3) an affidavit for entry of default, dkt. no. 12.

         II. Discussion

         A. Amended Complaint (Dkt. No. 7)

         Before addressing the plaintiff's pending motions, the court considers whether the plaintiff has complied with the court's May 8, 2017 order-in other words, the court must determine whether it has jurisdiction to proceed to the merits of the plaintiff's case.

         The amended complaint differs from the original complaint in several ways. The amended complaint no longer names “Alane Holliday” as a defendant; the plaintiff has named only “American Dental Professional Services[.]” Dkt. No. 7 at 1. The amended complaint no longer contains allegations of improper x-rays or of fraudulent advice. The amended complaint increases the amount of requested damages from $5, 000, 000 to $45, 000, 000. Id. at 2.

         The body of the complaint contains three factual allegations. First, the plaintiff says that Alane Holliday is a dentist “who is either an employee or franchisee of the Defendant.” Id. at ¶1. Second, she alleges that “Alane Holliday caused negligent and/or malicious injury to my facial nerve and tooth by failing to remove a toothbrush bristle from between my teeth; that she admitted to seeing.” Id. at ¶2. Finally, the plaintiff states that Holliday's failure to remove the toothbrush bristle resulted in facial paralysis as well as damage to the tooth, “which fractured and broke in half on Thursday, May 11, 2017.” Id. at ¶3.

         As the court noted in its previous order, a federal court has diversity jurisdiction in cases where the suit is between “citizens of different States, ” 28 U.S.C. §1332(a)(1), and the amount in controversy exceeds $75, 000.00, 28 U.S.C. §1332(b). Diversity jurisdiction “applies only to cases in which the citizenship of each plaintiff is diverse from the citizenship of each defendant.” Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996).[1]

         By removing Alane Holliday as a defendant, the plaintiff has removed the one obviously non-diverse defendant. The amended complaint now involves a suit by a Tennessee resident (the plaintiff) against what she states is a Wisconsin company, for damages in excess of $75, 000. The Supreme Court has held, however, that a plaintiff cannot defeat the statutory requirement of complete diversity by suing only those defendants of diverse citizenship and waiting for those defendants to implead non-diverse defendants. Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978).

         Here, although the plaintiff has not named the non-diverse defendant (Ms. Holliday) as a defendant, the amended complaint states allegations and claims only against Holliday. The only place in the body of the amended complaint where the plaintiff mentions American Dental Professional Services is when she says that Holliday is an employee or franchisee of American Dental. She makes no allegations against American Dental Professional Services itself. It appears to the court that the plaintiff still is attempting to sue Holliday, not American Dental Professional Services, but that she removed Holliday's name as a defendant in order to “create” federal jurisdiction. This is exactly what the Supreme Court has said she cannot do.

         The other jurisdictional issue raised by the amended complaint is that American Dental Professional Services, which the plaintiff states is located at 9054 N. Deerbrook Trail in Milwaukee, appears to be a limited liability corporation. The Better Business Bureau web site lists the defendant as an LLC.[2] There is also an American Dental Professional Services, LLC listed on the Wisconsin Department of Financial Institutions' web ...


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