United States District Court, N.D. Illinois, Western Division
Kurtis M. Bailey, Plaintiff,
Bernzomatic, et al., Defendants.
G. Reinhard Judge
reasons stated below, this case is dismissed without
prejudice for lack of subject matter jurisdiction.
8/2/2016, the court entered an order  directing plaintiff
to file amended jurisdictional allegations to properly plead
subject matter jurisdiction. Plaintiff filed a first amended
complaint  on 8/29/2016. Plaintiff has now pled he is a
citizen of Illinois, so that problem has been corrected,
however, the first amended complaint does not correct the
other jurisdictional pleading defects noted in the
court's prior order.
jurisdiction section of the first amended complaint begins:
“This is a product defect action which arises in
relation to 49 CFR § 178 et seq., aka ‘DOT
39" (government mandated safety requirements.) In the
original complaint , this same language also appears and
is followed by “and therefore falls under Federal
Question jurisdiction.” In finding in its prior order
that these regulations do not provide a basis for federal
question jurisdiction, the court stated: “The cited
regulations are promulgated under the authority of The
Hazardous Materials Transportation Act, 49 U.S.C.
§§ 5101-5127 (“HMTA”). Neither these
regulations nor the HMTA provide a private right of
action.” Casey-Beich v. United Parcel Service,
Inc., 295 Fed.Appx. 92 (7th Cir. 2008).
“Only the Attorney General is authorized to pursue a
civil claim under these statutes and regulations.
See 49 U.S.C. § 5122(a); Tekavec v. Van
Waters & Rogers, Inc., 12 F.Supp.2d 672, 683 (N.D.
Ohio 1998).” Id. Casey-Beich confirms
“these regulations cannot establish federal-question
the first amended complaint cites these regulations, unlike
the original complaint, it does not assert federal question
jurisdiction based on them. This is consistent with the
court's prior ruling and Casey-Beich. The first
amended complaint does not make any other allegations of
federal question jurisdiction. In the absence of a federal
question being pled, the court must look to diversity to see
if subject matter jurisdiction has been pled.
first amended complaint's jurisdiction section also
contains the following: “All of the named defendants
are believed to be owned and operated by Worthington Cylinder
Corporation aka Worthington Cylinders Wisconsin, LLC and said
defendants are citizens of Wisconsin and of Ohio.” The
section of the first amended complaint designated
“Parties” is identical to the
“Parties” section of the original complaint and
contains the following: “At all times relevant herein,
Defendant, BERNZOMATIC, was an Unincorporated Division of
IRWIN INDUSTRIAL TOOL COMPANY, and IRWIN INDUSTRIAL TOOL
COMPANY was a subsidiary of NEWELL OPERATING COMPANY, INC.
However, based on information and belief, Plaintiff alleges
that WORTHINGTON CYLINDER CORPORATION, AND/OR WORTHINGTON
INDUSTIRES, INC., purchased BERNZOMATIC approximately in July
2011. Based on information and belief, Plaintiff therefore
alleges that BERNZOMATIC, IRWIN INDUSTRIAL TOOL COMPANY,
NEWELL OPERATING COMPANY INC., WORTHINGTON CYLINDER
CORPORATION; and WORTHINGTON INDUSTIRES, are at present one
and the same overall business entity and defendant, and shall
therefore hereinafter be jointly referenced as
“BERNZOMATIC.” The “Parties” section
of the first amended complaint also contains a paragraph
which says plaintiff is suing “DOES 1 through 50
inclusive”. This paragraph is also identical to one in
the original complaint.
corporations are parties the “plaintiff must allege
both the state of incorporation and the state of the
principal place of business for each corporation” in
order to plead diversity jurisdiction. McCready v. eBay,
Inc., 453 F.3d 882, 891 (7th Cir. 2006)
(quoting, Casio, Inc. v. S.M. & R. Co., Inc.,
755 F.2d 528, 529-30 (7th Cir. 1985). This is
necessary because a corporation is a citizen of both its
state of incorporation and the state of its principal place
of business for diversity purposes. 28 U.S.C. §
the original complaint failed to contain allegations as to
the states of incorporation and principal places of business
of the corporate parties, the court ordered plaintiff to file
amended jurisdictional allegations correcting this
deficiency. Plaintiff has not done so. The only change from
the original complaint to the first amended complaint is the
addition of the allegation “[a]ll of the named
defendants are believed to be owned and operated by
Worthington Cylinder Corporation aka Worthington Cylinders
Wisconsin, LLC and said defendants are citizens of Wisconsin
and of Ohio.” This does not allege the state of
incorporation or principal place of business of Worthington
Cylinder Corporation so diversity jurisdiction has not been
pled as to it.
Worthington Cylinders Wisconsin, LLC, a limited liability
company's citizenship for diversity purposes is the
citizenship of each of its members. Each member must be
identified along with the member's citizenship.
Hicklin Engineering, L.C. v. Bartell, 439 F.3d 346,
348 (7th Cir. 2006) (“A federal court thus
needs to know each member's citizenship, and if necessary
each member's members' citizenships.”),
abrogated on other grounds by Americold Realty Trust v.
ConAgra Foods, Inc., ___ U.S. ___, 136 S.Ct. 1012
(2016). Plaintiff has not identified the members of
Worthington Cylinde s Wisconsin, LLC nor their citizenship so
diversity jurisdiction has not been pled as to it either.
the other defendants, the allegations as to them are
identical to the allegations in the original complaint
already found to be deficient. Even assuming these other
defendants are subsidiaries of another defendant, it does not
render them co-citizens with their parent. See Bond v.
Veolia Water Indianapolis, LLC, 571 F.Supp.2d 905,
913-14 (S.D. Ind. 2008) (Hamilton, J.) Each corporation named
as a party must have its state of incorporation and principal
place of business pled.
first amended complaint also repeats from the original
complaint the inclusion of 50 Doe defendants. As noted in the
court's prior order “Doe defendants generally are
not permitted in federal diversity suits because their
citizenship is unknown. Howell v. Tribune Entertainment
Co., 106 F.3d 215, 218 (7th Cir.
1997).” It is possible, however, since the first
amended complaint does not contain any allegations against
the Doe defendants, that they could have been dropped to
secure diversity if diversity jurisdiction otherwise had been
order of 8/2/2016, the court ordered plaintiff to “file
amended jurisdictional allegations properly pleading
diversity of citizenship jurisdiction or alleging a proper
basis for federal question jurisdiction or this case will be
dismissed for lack of subject matter jurisdiction.”
Plaintiff has not properly pled diversity of citizenship nor
has he pled a federal question. Accordingly, this case will
be dismissed for lack of subject matter jurisdiction. The
court notes that dismissals for lack of subject matter
jurisdiction are without prejudice. Plaintiff is free to
pursue his claim in an appropriate forum.
foregoing reasons, this case is dismissed without prejudice