United States District Court, E.D. Wisconsin
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
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
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.
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.
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.
Amended Complaint (Dkt. No. 7)
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.
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.
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
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).
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).
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.
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
There is also an American Dental Professional Services, LLC
listed on the Wisconsin Department of Financial
Institutions' web ...