IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS
February 28, 2006
JAMES REED, PLAINTIFF,
KOMATSU AMERICA CORP., DEFENDANT.
The opinion of the court was delivered by: Herndon, District Judge
MEMORANDUM and ORDER
On December 7, 2005, James Reed sued Komatsu America Corp. ("Komatsu") in this Court based on diversity jurisdiction, 28 U.S.C. § 1332 (Doc. 1).*fn1 Specifically, Reed alleges that between August 6, 2001 and September 21, 2001, he purchased a Komatsu Crawler Bulldozer from Roland Machinery Company, an agent of Komatsu, that had an inferior paint job and that the paint job was not fit for its intended purpose of protecting the machine from deterioration. (Doc. 1, ¶ ¶ 4 & 7). Reed's complaint against Komatsu contains three counts: breach of warranty, negligence and fraud.
Thereafter, on January 25, 2006, Komatsu filed a motion to dismiss for lack of subject matter jurisdiction (Doc. 8). Komatsu argues that diversity jurisdiction is lacking because both Reed and Komatsu are citizens of Illinois. (Doc. 8, p.2, Exhibit 2, Affidavit of David Nardo). Specifically, Komatsu argues that it is a citizen of both Georgia and Illinois as it is a Georgia corporation with its principal place of business in Illinois.*fn2 As of this date, Reed has not responded to the motion to dismiss. Pursuant to Local Rule 7.1(c), the Court considers this failure to respond an admission of the merits of the motion.*fn3 Accordingly, the Court GRANTS Komatsu's motion to dismiss for lack of subject matter jurisdiction (Doc. 8). The Court DIMISSES without prejudice Reed's cause of action with leave to re-file in a court of competent jurisdiction.
IT IS SO ORDERED.
David R. Herndon United States District Judge