United States District Court, W.D. Wisconsin
OPINION AND ORDER
WILLIAM M. CONLEY, DISTRICT JUDGE.
civil action, plaintiffs claim that defendants'
“Bard G2 IVC filter” implanted in Mary Elizabeth
failed, causing physical, mental and economic injury.
(See Compl. (dkt. #1) ¶ 9.) Plaintiffs allege
that defendants: (1) “knew and/or should have known
that [the] ¶ 2 filter was defective and unreasonably
dangerous” before Mary Elizabeth's implantation
procedure; and (2) “misrepresented, omitted, and/or
failed to provide full, complete and adequate warnings of
the risks or instructions for safe use.”
(Id. ¶¶ 11, 16.) Plaintiffs also allege
that this court may exercise its diversity jurisdiction under
28 U.S.C. § 1332(a)(1). (Id. ¶ 6.) Because
the allegations in the complaint are insufficient to
determine if this is so, plaintiffs will be given an
opportunity to file an amended complaint containing the
necessary factual allegations to establish diversity
jurisdiction. Failure to do so timely will result in
dismissal for lack of subject matter jurisdiction.
courts are courts of limited jurisdiction.”
Int'l Union of Operating Eng'r, Local
150, AFL-CIO v. Ward, 563 F.3d 276, 280 (7th Cir.
2009) (citation omitted). Absent the presence of federal
question jurisdiction, unless a complaint alleges complete
diversity of citizenship among the parties and an amount in
controversy exceeding $75, 000, the case must be dismissed
for want of jurisdiction. Smart v. Local 702 Int'l
Bhd. of Elec. Workers, 562 F.3d 798, 802 (7th Cir.
2009); 28 U.S.C. § 1332(a). Moreover, because
jurisdiction is limited, federal courts “have an
independent obligation to determine whether subject-matter
jurisdiction exists, even when no party challenges it.”
Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010).
Further, the party seeking to invoke federal jurisdiction
bears the burden of establishing that jurisdiction is
present. Smart, 562 F.3d at 802-03.
plaintiffs contend that diversity jurisdiction exists
because: (1) the amount in controversy exceeds $75, 000; and
(2) the parties are diverse. (Compl. (dkt. #1) ¶ 6.) For
the latter to be true, however, there must be
complete diversity, meaning neither plaintiff can be
a citizen of the same state as any defendant.
Smart, 562 F.3d at 803. However, plaintiffs'
allegations prevent this court from determining whether it
has jurisdiction for two reasons.
first of these defects should be easily corrected. Currently,
the complaint only alleges plaintiffs' Wisconsin
residency. (Compl. (dkt. #1) ¶¶ 1-2.)
Strictly speaking (and the Seventh Circuit has repeatedly
advised lower courts that we are speaking strictly), an
individual person's domicile rather than his or her
residence must be alleged. See Winforge, Inc. v. Coachmen
Indus., Inc., 691 F.3d 856, 867 (7th Cir. 2012)
(“An allegation of residence is not sufficient to
establish citizenship, which requires domicile.”
(internal citations omitted)). A person's domicile is
“the state in which a person intends to live over the
long run.” Heinen v. Northrop Grumman Corp.,
671 F.3d 669, 670 (7th Cir. 2012). As such, a person may have
several residences, but only one domicile. See Id.
Since the original complaint fails to identify either
plaintiff's domicile, their citizenship remains unknown.
complaint's second defect is hopefully almost as easily
addressed. As to defendant C.R. Bard, Inc., the complaint
alleges that it “is a corporation duly organized and
existing under the laws of the state of Delaware, and has its
principal place of business in New Jersey.” (Compl.
(dkt. #1) ¶ 3.) However, the only allegation as to
defendant Bard Peripheral Vascular, Inc., is that it is
“a wholly owned subsidiary corporation of defendant
C.R. BARD, INC., with its principal place of business at 1625
West 3rd Street, Tempe, Arizona.” (Id. ¶
4.) Under § 1332(c)(1), “a corporation shall be
deemed to be a citizen of every State and foreign state by
which it has been incorporated and of the State or foreign
state where is has its principal place of business.”
Plaintiffs do not allege Bard Peripheral Vascular's state
of incorporation. Accordingly, its citizenship is partially
dismissing this action for lack of subject matter
jurisdiction, plaintiffs will be given leave to file
within 14 days an amended complaint that
establishes subject matter jurisdiction by alleging each
plaintiff's domicile, as well as the state of
incorporation for defendant Bard Peripheral Vascular.
1) Plaintiffs shall have until August 20, 2019, to file and
serve an amended complaint containing good faith allegations
sufficient to establish complete diversity of
citizenship for purposes of determining subject matter
jurisdiction under 28 U.S.C. § 1332.
2) Failure to amend timely shall result in prompt dismissal
of this matter for lack of ...