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Cain v. Osman

IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF ILLINOIS


July 18, 2007

JOHN W. CAIN, PLAINTIFF,
v.
RONALD E. OSMAN, HARRY RIGGS, NANCY RIGGS, SARA (NIESTE) FINKE, MICHAEL W. MAURIZIO, JOHN TIMOTHY KELLER, RONALD E. OSMAN & ASSOCIATES, LTD., AND SUCH OTHER PERSON OR PERSONS KNOWN OR UNKNOWN, LAWYERS, PARALEGALS, SECRETARIES AND ADMINISTRATORS, PERSONS OR CORPORATIONS AS MAY BE DERIVED OR CLAIM THEIR TITLE AS GRANTEES, SUCCESSORS, ASSIGNS, HEIRS, LESSEES OR DEVISEES OF THE PERSONS NAMED TO THIS PETITION, DEFENDANTS.

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

ORDER

Before the Court is Defendant's, Ronald E. Osman's, motion to dismiss for want of jurisdiction, pursuant to 28 U.S.C. § 1332 (Doc. 3). Defendant moves the Court to dismiss this action because Plaintiff has alleged that the parties are diverse based on the parties' residence rather than their place of citizenship.

Defendant is correct that Plaintiff has alleged "residence" rather than "citizenship." In the Seventh Circuit, the general rule provides that when parties allege residence rather than citizenship, "the district court must dismiss the suit." Adams v. Catrambone, 359 F.3d 858, 861 n.3 (7th Cir. 2004) (quoting Guaranty National Title Co., Inc.,101 F.3d at 59)

If, however, a party concedes that he is a citizen rather than a resident of the state in question, the pleading error does not require dismissal. Macken ex rel. Macken v. Jensen, 333 F.3d 797, 799 (7th Cir. 2003). Additionally, unless a jurisdictional defect is clearly incurable, the Seventh Circuit has encouraged district courts freely to grant leave to amend defective allegations of subject matter jurisdiction. See Leaf v. Supreme Court of Wisconsin, 979 F.2d 589, 595 (7th Cir. 1992), cert. denied, 508 U.S. 941 (1993); Frey v. E.P.A., 270 F.3d 1129, 1131-32 (7th Cir. 2001).

The Court has conducted its threshold review and has this day, by separate Order, required Plaintiff to identify the citizenship of each Defendant (see Doc. 4).

For these reasons, the Court DENIES without prejudice Defendant's motion to dismiss for want of jurisdiction (Doc. 3).

IT IS SO ORDERED.

MICHAEL J. REAGAN United States District Judge

20070718

© 1992-2007 VersusLaw Inc.



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