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OCASEK v. FLINTKOTE CO.

August 19, 1992

MARJORIE OCASEK, Special Administrator of the Estate of BOBBY NEWEL, Deceased, Plaintiff, -vs- THE FLINTKOTE COMPANY, et al. Defendants.

Lindberg


The opinion of the court was delivered by: GEORGE W. LINDBERG

MEMORANDUM OPINION AND ORDER

 This action was filed on behalf of then-plaintiff, Bobby Newell, on July 7, 1992. On July 13, 1992, this court, sua sponte, dismissed the complaint for failure to adequately plead the court's subject matter jurisdiction. Specifically, plaintiff attempted to plead diversity of citizenship, but alleged that both plaintiff Bobby Newell and defendant Special Materials Inc.-Wisconsin were citizens of Wisconsin. That other defendants were citizens of foreign states was also alleged, but did not give this court diversity jurisdiction. See 28 USC § 1332(a). See also Newman-Green, Inc. v Alfonzo-Larrain, 490 U.S. 826, 828, 104 L. Ed. 2d 893, 109 S. Ct. 2218 (1989).

 Plaintiff filed a motion to reinstate and for leave to file an amended complaint and a petition for appointment of a special administrator, both of which were denied for want of prosecution on July 23, 1992. Plaintiff's oral motion to reconsider the order of July 23, 1992, was granted on August 5, 1992. Plaintiff's motions to reinstate and to file an amended complaint, and the petition to appoint a special administrator were granted on that same date.

 The petition to appoint a special administrator contains a statement that raises serious questions about the initial filing of this action. In the petition for the appointment of a special administrator, it is stated that, "The Plaintiff, BOBBY NEWELL, died on May 31, 1991." It seems obvious that Bobby Newell did not have the capacity to bring this action on July 7, 1992, when the complaint was filed. Nonetheless, counsel filed a complaint denominating Bobby Newell as plaintiff, beginning, "NOW COMES the plaintiff, BOBBY NEWELL, by and through his attorneys;" stating that, "The plaintiff, BOBBY NEWELL, is a citizen of the State of Wisconsin;" and not even hinting at his demise over thirteen months earlier. Moreover, counsel went so far as to file an appearance on behalf of "plaintiff" and to file affidavits evidencing compliance with General Rule 39 for "plaintiff." Apart from the possible rules violated by the filing of the complaint, appearance, and affidavits (see, e.g., FRCP 11; U.S. Dist Ct, N D Ill, RPC 3.3(a)(1), (8)), the lack of a proper party plaintiff at the outset of this action could have resulted in substantial waste of time and effort by the court and counsel.

 The appointment of the special administrator and the filing of the amended complaint have corrected the lack of a plaintiff in this case as of August 5, 1992. To correct the other problems created by the initial filing, counsel are directed to file an appearance on behalf of the plaintiff, special administrator Marjorie Ocasek. In addition, they shall file new affidavits. When they file the new affidavits, they shall not strike the last paragraph as they did in their original affidavits, but shall instead comply with that paragraph's requirements. See U.S. Dist Ct, N D Ill, GR 39.

 In the amended complaint, it is alleged that, "The plaintiff, MARJORIE OCASEK, is a citizen of the State of Illinois." This does not change the situation for purposes of this court's diversity jurisdiction; for diversity purposes "the legal representative of the estate of a decedent shall be deemed to be a citizen only of the same State as the decedent" meaning plaintiff is still considered a citizen of Wisconsin, the state of which the late Bobby Newell was a citizen. 28 USC § 1332(c)(2). Neither in the amended complaint nor in the motion to reinstate and for leave to file the amended complaint does plaintiff contend that this court has diversity jurisdiction.

 Rather, plaintiff in the amended complaint alleges:

 The court has jurisdiction over the subject matter of this action under sections 28 U.S.C. § 1330, 1603, 1605(d). Defendant Asbestos Corporation, Ltd. (ACL) is an instrumentality of Canada. The matter in controversy exceeds the sum of $ 50,000.00 exclusive of interests [sic] and costs.

 In the motion to reinstate and for leave to file an amended complaint plaintiff states:

 Jurisdiction in fact exists pursuant to 28 U.S.C. § 1330 and § 1603 and § 1605 (d) inasmuch as Defendant, ACL in [sic] an instrumentality of the Government of Canada, a foreign state. (attached hereto is a copy of Rutkowski v. ACL, 83 C 2339, a Northern District opinion recognizing ACL's status.)

 There are an allegation of fact and a citation in these assertions that are of no significance to this court's subject matter jurisdiction.

 The amount in controversy pled is irrelevant, as the statute under which jurisdiction is asserted provides that, "The district courts shall have original jurisdiction without regard to amount in controversy." 28 USC § 1330(a). The citation of section 1605(d) is puzzling, as that statute provides:

 A foreign state shall not be immune from the jurisdiction of the courts of the United States in any action to foreclose a preferred mortgage, as defined in the Ship Mortgage Act, 1920 (46 U.S.C. 911 and following). Such action shall be brought, heard, and determined in accordance with the provisions of that Act and in accordance with the principles of law and rules of practice of suits in rem, whenever it ...


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