United States District Court, Northern District of Illinois, Eastern Division
January 16, 2003
DAWN HAYES, INDIVIDUALLY AND AS SPECIAL ADMINISTRATOR OF THE ESTATE OF CHRISTOPHER HAYES, DECEASED, J. BENSON, PLAINTIFF,
BASS PRO OUTDOOR WORLD, LLC., L & L ENTERPRISES, INC., INDIVIDUALLY AND D/B/A OL'MAN TREE STANDS, DEFENDANTS.
The opinion of the court was delivered by: Blanche M. Manning, United States District Judge
MEMORANDUM AND ORDER
This matter is before the court pursuant to 28 U.S.C. § 1446(c)(4), which requires the court to examine notices of removal to determine if removal is proper. Defendant Bass Pro Outdoor World filed a timely notice of removal pursuant to 28 U.S.C. § 1441, invoking federal jurisdiction pursuant to 28 U.S.C. § 1332. For the following reasons, the court sua sponte remands this action to the Circuit Court of Cook County, Illinois, based on Bass Pro's failure to comply with Northern District of Illinois Local Civil Rule 81.2 and its failure to adequately establish that diversity jurisdiction is proper.
This products liability action arises from the death of Christopher Hayes on November 18, 2000. Mr. Hayes met an untimely and tragic end when he was asphyxiated while using a tree stand and chest harness while hunting deer.*fn1 Mr. Hayes' widow, individually and on behalf of her husband's estate, sued L & L Enterprises, d/b/a Ol'Man Tree Stands (which designed and produced the tree stand) and Bass Pro (which sold the tree stand).
The complaint seeks in excess of $50,000 and alleges that L & L is a Mississippi corporation and Bass Pro is a Missouri corporation. The notice of removal adds that: (1) Bass Pro is a Missouri limited partnership with its principal place of business in Missouri; (2) upon information and belief, L & L is a Mississippi corporation with its principal place of business in Mississippi; (3) Ms. Hayes is a resident of Illinois; and (4) Mr. Hayes was a resident of Illinois. With respect to the amount in controversy, the notice of removal states, "[u]pon information and belief, the amount in controversy exceeds $75,000, exclusive of interests and costs, inasmuch as the plaintiffs seek damages arising out of the death of Christopher Hayes."
The defendant in a removed action bears the burden of establishing that the requirements for diversity jurisdiction have been met. Chase v. Shop `N Save Warehouse Foods, Inc., 110 F.3d 424, 427 (7th Cir. 1997). While the complaint is generally the starting point for a determination regarding the existence of diversity jurisdiction, the defendant may also establish that diversity is proper by supporting its allegations of jurisdiction with "competent proof." Id. The Seventh Circuit has held that this standard requires the defendant to offer evidence which proves, to a reasonable certainty, that jurisdiction exists. Id.
28 U.S.C. § 1332 requires complete diversity and an amount in controversy greater than $75,000. Here, there are problems with both the allegations as to citizenship and the amount in controversy.
The notice of removal states that Bass Pro is a Missouri limited partnership. A limited partnership has the citizenship of every partner, general and limited (and every partner of every partner). Garden v. Arkoma Associates, 494 U.S. 185 (1990); Guaranty National Title Co. v. J.E.G. Associates, 101 F.3d 57 (7th Cir. 1996). Thus, alleging that Bass is a limited partnership with its principal place of business in Missouri fails to provide the court with all of the required citizenship information.
With respect to L & L, upon information and belief, it is a Mississippi corporation with its principal place of business in Mississippi. Allegations of citizenship that are made "upon information and belief" are insufficient under Federal Rule of Civil Procedure 11. Multi-M Int'l, Inc. v. Paige Med. Supply Co., 142 F.R.D. 150, 152 (N.D.Ill. 1992). citing Bankers Trust Co. v. Old Republic Ins. Co., 959 F.2d 677, 683 (7th Cir. 1992).
The allegations as to the individuals are also insufficient since they provide information about the Hayes' residency. Residency is not the same as citizenship. See Guaranty National Title Co., Inc. v. J.E.G. Associates, 101 F.3d at 59 (citizenship, not residency, is what matters for diversity jurisdiction, so "[w]hen the parties allege residence but not citizenship, the court must dismiss the suit").
While the notice of removal clearly sets forth the basis for removal — diversity jurisdiction — it does not incorporate evidence as to citizenship which satisfies the "competent proof" standard set forth in Chase. This omission does not necessarily mean that the defendants' sojourn in federal court must end as the court may allow amendment of defective allegations of jurisdiction at any time. See 28 U.S.C. § 1653. Moreover, amendment of a notice of removal to correct a technical defect is generally permissible, even if the amendment occurs more than thirty days after removal. See Stein v. Sprint Communications Co., L.P., 968 F. Supp. 371, 375 (N.D. III. 1997), citing Wright, Miller & Cooper, Federal Practice and Procedure § 3733 at 537-38 (2d ed. 1985) ("the petition may be amended only to set out more specifically grounds for removal that have already been stated, albeit imperfectly, in the original petition; new grounds may not be added and missing allegations may not be furnished").
The problems with the citizenship allegations are, however, not Bass Pro's only procedural missteps. Local Civil Rule 81.2(a) provides that:
Where one or more defendants seek to remove an action
from an Illinois state court based upon diversity of
citizenship, and where the complaint does not contain
an express ad damnum, as to at least one claim
asserted by at least one plaintiff, in an amount
exceeding the jurisdictional amount in controversy,
exclusive of interest and costs, specified in
28 U.S.C. § 1332 (the "jurisdictional amount")
that is based on express allegations in that claim in
conformity with that ad damnum, the notice of removal
shall include in addition to any other matters
required by law:
(1) a statement by each of the defendants previously
served in the state court action that it is his,
her or its good faith belief that the amount in
controversy exceeds the jurisdictional amount;
(2) with respect to at least one plaintiff in the
Illinois action, either —
(A) a response by such plaintiff to an
interrogatory or interrogatories (see
Ill.S.Ct. Rule 213) as to the amount in
controversy, either (i) stating that the
damages actually sought by that plaintiff
exceed the jurisdictional amounts or (ii)
declining to agree that the damage award to
that plaintiff will in no event exceed the
jurisdictional amount; or
(B) an admission by such plaintiff in response to
a request for admissions (see Ill.S.Ct. Rule
216(a)), or a showing as to the deemed
admission by such plaintiff by reason of
plaintiff's failure to serve a timely denial
to such a request (see Ill.S.Ct. Rule
216(c)), in either event conforming to the
statement or declination to agree described in
subparagraph (2)(A) of this rule.
Receipt by the removing defendant or defendants of the
response by a plaintiff referred to in subparagraph
(2)(A) or of the admission by a plaintiff referred to
in paragraph (2)(B), or the occurrence of the event
giving rise to a deemed admission by a plaintiff
referred to in subparagraph (2)(B) shall constitute
the receipt of a "paper from which it may first be
ascertained that the case is one which is or has
become removable" within the meaning of
28 U.S.C. § 1446(b). Where the defendant or
defendants do not include the statement required by
paragraph (1) of this rule, or do not comply with one
of the alternatives described in paragraph (2) of this
rule, the action will be subject to remand to the
state court for failure to establish a basis of
Subject matter jurisdiction must be present based on the complaint as it existed at the time the defendant filed its petition for removal. See, e.g., Gossmeyer v. McDonald, 128 F.3d 481, 487 (7th Cir. 1997). Here, the notice of removal does not include a "statement by each of the defendants . . . that it is his good faith belief that the amount in controversy exceeds $75,000." See Local Civil Rule 81.2(a)(1). The defendants also do not attach the materials specified by Local Civil Rule 81.2(a)(2).
Thus, the court will assume that the defendants are claiming that they are within the scope of the unnumbered initial paragraph of that rule, which provides that compliance with the rule is unnecessary if the complaint contains "an express ad damnum, as to at least one claim asserted by at least one plaintiff, in an amount exceeding $75,000 (exclusive of interest and costs) that is based on express allegations in that claim in conformity with that ad damnum." The notice of removal states, "[u]pon information and belief, the amount in controversy exceeds $75,000, exclusive of interests and costs, inasmuch as the plaintiffs seek damages arising out of the death of Christopher Hayes." While it seems likely that the amount in controversy amount will be satisfied, Ms. Hayes could theoretically limit the amount of damages she seeks to stay in state court. The local rules require a defendant in a removed action to provide more than a plausible theory supporting the asserted amount in controversy.
The deficiencies in the notice of removal make it impossible for this court to determine if the parties are diverse and whether the jurisdictional amount has been satisfied. Moreover, the problems with Local Rule 81.2 warrant remand based on the failure to properly support the amount in controversy. Accordingly, this case is remanded to the Circuit Court of Cook County pursuant to 28 U.S.C. § 1447(c), based on lack of subject matter jurisdiction.
For the above reasons, this case is remanded to the Circuit Court of Cook County pursuant to 28 U.S.C. § 1447(c) based on lack of subject matter jurisdiction.