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Napoles v. Johnson

United States District Court, Seventh Circuit

May 8, 2013

DAVID JOHNSON, SR., individually and as) Hon. Virginia M. Kendall Father and Next Friend of DAVID JOHNSON, Jr., a minor, Defendants.


VIRGINIA M. KENDALL, District Judge.

Plaintiff Cristian Napoles has asserted claims against Defendant David Johnson Jr. for common law battery and for aggravated battery. He also asserted a claim against Defendant David Johnson Sr. for negligent supervision. The Defendants have separately moved to dismiss the claims asserted them pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. For the reasons set forth below, the Court dismisses the aggravated battery and negligent supervision claims but denies the motion to dismiss the common law battery claim.


The following facts are taken from Napoles's Complaint are assumed to be true for purposes of the Motion to Dismiss. See Voelker v. Porsche Cars North America, Inc., 353 F.3d 516, 520 (7th Cir. 2003); Murphy v. Walker, 51 F.3d 714, 717 (7th Cir. 1995). On October 31, 2011, Napoles and Johnson Jr. got into an altercation at the corner of Price Avenue and 156th Place in Calumet City, Illinois. During the course of the altercation, Johnson Jr. hit Napoles in the left eye with a blunt object. The strike caused severe damage to Napoles's eye. As a result, Napoles's left eye needed to be removed and he is now partially blind.

Due to this injury, Napoles filed the instant action in the Circuit Court of Cook County, Illinois asserting claims against Johnson Jr. for common law battery and aggravated battery as well as a claim against Johnson Sr. for negligent supervision of a minor child.[1] On December 21, 2012, Johnson Sr. removed the case to this Court on the basis of diversity jurisdiction as established in 28 U.S.C. § 1332. The defendants have now separately moved this Court to dismiss the respective claims asserted against them pursuant to Federal Rule of Civil Procedure 12(b)(6).


When considering a motion to dismiss under Rule 12(b)(6) the Court accepts as true all of the well-pled facts alleged in the complaint and construes all reasonable inferences in favor of the nonmoving party. See Killingsworth v. HSBC Bank Nevada, N.A., 507 F.3d 614, 619 (7th Cir. 2007) (citing Savory v. Lyons, 469 F.3d 667, 670 (7th Cir. 2006)); accord Murphy, 51 F.3d at 717. To state a claim upon which relief can be granted a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). "Detailed factual allegations" are not required, but the plaintiff must allege facts that, when "accepted as true... state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (internal quotations omitted). In analyzing whether a complaint meets this standard the "reviewing court [must] draw on its judicial experience and common sense." Iqbal, 556 U.S. at 678. When the factual allegations are well-pled the Court assumes their veracity and then determines if they plausibly give rise to an entitlement to relief. See id. at 679. A claim has facial plausibility when the factual content plead in the complaint allows the Court to draw a reasonable inference that the defendant is liable for the misconduct alleged. See id. at 678.


I. Subject-Matter Jurisdiction

As a preliminary matter the Court is compelled to discuss the existence of subject-matter jurisdiction in this case. See Wernsing v. Thompson, 423 F.3d 732, 743 (7th Cir. 2005) (noting that if there is a possible absence of subject-matter jurisdiction, the Court should raise that issue on its own motion); Smoot v. Mazda Motors of America, Inc., 469 F.3d 675, 678 (7th Cir. 2006) (because "limits on subject-matter jurisdiction are not waivable or forfeitable...federal courts are required to police their jurisdiction"); Fed.R.Civ.P. 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.").

This case was removed from the Circuit Court of Cook County on the basis of diversity jurisdiction under 28 U.S.C. § 1332. The defendants in this case have the burden of proving that the parties are citizens of different states. See Smart v. Local 702 International Brotherhood of Electrical Workers, 562 F.3d 798, 802-03 (7th Cir. 2009). The Complaint alleges that the plaintiff and both defendants are residents of Illinois. The notice of removal concedes this point but argues that Napoles is not a citizen of Illinois for diversity purposes because Napoles is a citizen of Mexico who is residing in the United States illegally.[2] As part of his notice of removal, Johnson Sr. presented evidence demonstrating that there is no record of a birth certificate, Social Security Number or driver's license issued to Napoles by the United States. Johnson Sr. also presented evidence that there are no records demonstrating that Napoles is a lawful United States resident, such as a record of a Green Card. At a status hearing before this Court on February 7, 2013, counsel for Napoles did not dispute the assertion that Napoles is an illegal alien. However, neither party directly addressed the question of whether an alien living in the United States illegally can still be considered domiciled in the state in which they reside for purposes of 28 U.S.C. § 1332.

An individual is a citizen of the state in which he is domiciled. This means the state where the individual has "a permanent home and principal establishment, and to which he has the intention of returning whenever he is absent therefrom." Dakuras v. Edwards, 312 F.3d 256, 258 (7th Cir. 2009). The Court notes that an individual does not need to be a United States citizen to be considered a citizen for purposes of a diversity analysis. See 28 U.S.C. § 1332(a) ("an alien admitted to the United States for permanent residence shall be deemed a citizen of the State in which such alien is domiciled"); see also Intec USA, LLC v. Engle, 467 F.3d 1038, 1042-43 (7th Cir. 2006). However, this provision only applies to aliens admitted to the United States legally. Aliens who have entered the United States illegally are not considered citizens of one of the fifty states; rather, they are still considered citizens of a foreign state. See, e.g., Collado v. Cancel, No. 9:10-1870-MBS-RSC, 2010 WL 4038799, at *2 (D.S.C. Sept. 3, 2010) ("since it is clear that Plaintiff is an illegal alien and a citizen of the Dominican Republic, he never became either a New York or South Carolina resident for diversity purposes. Instead, he retained his status as a citizen of a foreign state..."). As a result, diversity jurisdiction exists in this case because the defendants presented sufficient evidence to meet their burden in showing that Napoles is not a United States citizen or a legal resident alien. See 28 U.S.C. § 1332(a)(2) ("The district courts shall have original jurisdiction of all civil actions where the between citizens of a State and citizens or subjects of a foreign state...").[3]

II. The Battery and Aggravated Battery Claims Against Defendant Johnson Jr.

Napoles asserts common law claims of battery and aggravated battery against Johnson Jr. Under Illinois law an individual commits a battery if he: (1) "acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact"; and (b) "a harmful contact with the person of the other directly or indirectly results." Bakes v. St. Alexius Medical Center, 955 N.E.2d 78, 85-86 (Ill.App.Ct. 2011) (citing RESTATEMENT (SECOND) OF TORTS § 13 (1965)); see also Chelios v. Heavener, 520 F.3d 678, 692 (7th Cir. 2008) ("Under Illinois ...

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