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Mifflin v. Clark

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


May 15, 2006

MARY JANE MIFFLIN, PLAINTIFF,
v.
MICHAEL HUNTER CLARK AND USF HOLLAND, INC., DEFENDANTS.

The opinion of the court was delivered by: Murphy, Chief District Judge

MEMORANDUM AND ORDER

This matter was reassigned to the undersigned on May 8, 2006. The Court, on its own motion, has reviewed the notice of removal and complaint to determine whether it has subject matter jurisdiction. Under Federal Rule of Civil Procedure 12(h)(3), this Court is obligated to review its own jurisdiction sua sponte. See Andrews v. E.I. du Pont de Nemours & Co.,No. 04-2882, 2006 WL 1191518, at *3 (7th Cir. May 5, 2006) ("Neither party has raised it but we have an independent obligation to be sure jurisdiction exists.").

Defendants removed this action, in which Plaintiff asserts a personal injury claim arising out of a car accident, claiming that jurisdiction is proper under 28 U.S.C. § 1332. However, Defendants allege as follows:

Defendant Clark currently resides, and resided at the time this action was filed, in the State of Missouri. Therefore, Clark was not and is not a citizen of the State of Illinois. . Though Plaintiff does not allege in her Complaint that she is a resident of the State of Illinois, it is the Defendants' current belief that she does reside in, and therefore is a citizen of, the State of Illinois.

(Doc. 1, ¶¶ 5, 7.) These allegations are insufficient to establish diversity of citizenship. America's Best Inns, Inc. v. Best Inns of Abilene, L.P., 980 F.2d 1072, 1074 (7th Cir. 1992) (per curiam) ("[i]n federal law citizenship means domicile, not residence").*fn1 Moreover, allegations based upon information and belief are insufficient to establish subject matter jurisdiction. Id. As the proponent of jurisdiction, Defendants must establish the requirements for subject matter jurisdiction, see Meridian Security Ins. Co. v. Sadowski, 441 F.3d 536, 540 (7th Cir. 2006), and at this time, they have not done so.

Although it seems likely that Defendants will be able to establish jurisdiction by more appropriate allegations, "subject matter jurisdiction must be a matter of certainty and not of probabilities." Murphy v. Schering Corporation, 878 F. Supp. 124, 125-26 (N.D. Ill. 1995).*fn2 Accordingly, pursuant to 28 U.S.C. § 1653, Defendants are ORDERED to file an Amendment to the Notice of Removal on or before May 25, 2006, to set forth the citizenship of Plaintiff and Defendant Clark. If Defendants fail to file an Amendment to the Notice of Removal in the manner and time prescribed or if, after reviewing it, the Court finds that Defendants cannot establish federal subject matter jurisdiction, the Court will remand the action to the First Judicial Circuit Court, Jackson County, Illinois, pursuant to 28 U.S.C. § 1447(c) for lack of jurisdiction. See Guaranty Nat'l Title Co. v. J.E.G. Assocs., 101 F.3d 57, 59 (7th Cir. 1996) (remanding case because "[l]itigants who call on the resources of a federal court must establish that the tribunal has jurisdiction, and when after multiple opportunities they do not demonstrate that jurisdiction is present, the appropriate response is clear"); see also Belleville Catering Co. v. Champaign Mkt. Place, L.L.C., 350 F.3d 691, 692 (7th Cir. 2003) ("Once again litigants' insouciance toward the requirements of federal jurisdiction has caused a waste of time and money.").

IT IS SO ORDERED.

G. PATRICK MURPHY Chief United States District Judge


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