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Peek v. Flying J. Inc.

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


March 10, 2008

JERRY PEEK, PLAINTIFF,
v.
FLYING J. INC., D/B/A FLYING J. TRAVEL PLAZA, DEFENDANT.

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

MEMORANDUM AND ORDER

On February 22, 2008, Magistrate Judge Proud granted Plaintiff's motion for leave to file an amended complaint to add an additional defendant and ordered Plaintiff to file his amended complaint on or before March 3, 2008. To date, Plaintiff has not filed the amended complaint.

The Court views Plaintiff's failure to file the amended complaint as ordered as a failure to prosecute this action. Moreover, Plaintiff's original complaint does not establish this Court's subject matter jurisdiction. See Hammes v. AAMCO Transmissions, Inc., 33 F.3d 774, 778 (7th Cir. 1994) ("the court has an independent duty to satisfy itself that it has subject-matter jurisdiction"). Specifically, Plaintiff's allegation that he is a "resident" of Florida is insufficient to establish his citizenship for purposes of the diversity of citizenship statute, 28 U.S.C. § 1332. 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").

Normally, a plaintiff is allowed an opportunity to amend non-fatal defective allegations of subject matter jurisdiction under 28 U.S.C. § 1653. See Leaf v. Supreme Court of Wis., 979 F.2d 589, 595 (7th Cir. 1992). However, because Plaintiff has failed to prosecute the action, this action is DISMISSED without prejudice. See Fischer v. Cingular Wireless, L.L.C., 446 F.3d 663, 665 (7th Cir. 2006) (leaving the decision whether to warn litigants before dismissing a case to district courts to ensure that dilatory tactics are sanctioned appropriately and to avoid burdening the district courts in their efforts to manage their dockets). The Clerk of Court is DIRECTED to close this case on the Court's docket.

IT IS SO ORDERED.

G. Patrick Murphy United States District Judge

20080310

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