United States District Court, S.D. Illinois
BONNIE SMITH SWEARINGEN, a disabled person, by and through her guardian BERNIE SMITH, Plaintiff,
ROBERT LENARD, JR., DONNA K. LENARD, DENNA DAVIS, CURTIS MARTIN, and PEOPLES NATIONAL BANK, Defendants.
MEMORANDUM AND ORDER
J. ROSENSTENGEL, UNITED STATES DISTRICT JUDGE.
before the Court is a Motion to Dismiss for Lack of
Jurisdiction filed by Defendant Curtis Martin (Doc. 48) and a
Motion to Amend or Correct First Amended Complaint filed by
Plaintiff Bonnie Smith Swearingen (Doc. 52). The Court notes
that although Swearingen titles the document
“Corrections to First Amended Complaint and Supplement,
” the allegations are almost identical to the first
amended complaint filed less than two months ago. Because the
Court does not believe Swearingen is actually attempting to
amend the complaint, so much as respond to the motion to
dismiss, the Court construes the document as a response to
litigation is brought by Bernie Smith on behalf of his
mother, Bonnie Smith Swearingen, concerning property alleged
to have been wrongfully taken from Swearingen by Robert
Lenard, Jr., Donna Kay Lenard, Deena Davis, Curtis Martin,
and Peoples National Bank. (Doc. 38, pp. 1-12). Specifically,
Smith alleges the Lenards, in their role as Powers of
Attorney for Swearingen's late husband, stole property
out of Swearingen's house and fraudulently withdrew money
from her bank account. (Doc. 38, pp. 3-5). Smith further
alleges Peoples National Bank participated with the Lenards
in a conspiracy to steal from Swearingen by hiding money from
both Smith and the Court. (Doc. 38, p. 11). Finally, Smith
alleges Defendant Deena Davis acted fraudulently and in
conspiracy with Defendant Curtis Martin to become the sole
trustee of Swearingen's Estate, and in violation of her
fiduciary duty, took money from the trust for her personal
benefit and to the financial benefit of Martin. (Doc. 38, pp.
6-7, 8-10). Smith requests the Court order Defendants to pay
restitution to Swearingen's trust for the alleged
illegally removed funds. (Doc. 38, pp. 12-18).
Complaint alleges diversity of citizenship under 28 U.S.C.
§ 1332 as the basis for this Court's subject matter
jurisdiction. (Doc. 1, p. 3). To satisfy diversity
jurisdiction, a plaintiff must allege: (1) the matter in
controversy exceeds the sum or value of $75, 000, exclusive
of interest and costs; and (2) the controversy is between
citizens of different states. 28 U.S.C. § 1332. Here,
Smith alleges damages in the amount of $700, 000, far in
excess of the required $75, 000, thus the first requirement
diversity jurisdiction purposes, an individual is considered
to be the citizen of the state in which she is domiciled,
Pollution Control Indus. of Am., Inc. v. Van Gundy,
21 F.3d 152, 155 n. 4 (7th Cir. 1994), which means the state
where the person is physically present with an intent to
remain indefinitely, Perry v. Pogemiller, 16 F.3d
138, 140 (7th Cir. 1993). Here, Bernie Smith brings claims in
his representative capacity as a co-guardian of the estate of
his mother, Bonnie Smith Swearingen. A guardian who brings suit
in that capacity has the citizenship of his ward. 28 U.S.C.
§ 1332(c)(2); Gustafson v. Zumbrunnen, 546 F.3d
398, 400 (7th Cir. 2008). The parties apparently agree that
Bonnie Smith Swearingen is a citizen of Indiana, where she
lives in a skilled nursing facility. (Doc. 18, p. 2, n. 1).
Defendants are all citizens of Illinois. (Doc. 41, p. 8). As
such, complete diversity exists.
claims that Smith also has filed claims in his individual
capacity, and thus his citizenship (Illinois) defeats
diversity. (Doc. 48, pp. 1-2). The basis of this claim
appears to be a few sentences in the nineteen page document.
Specifically, Martin points to language in the Amended
Complaint where Smith states Defendant Martin “Bernie
Smith and Bonnie Smith Swearingen who are both Mr.
Martin's clients, ” and claims that Martin
“breeched his contract with Bonnie Smith Swearingen and
Bernie Smith.” (Doc. 48, p. 5)(Citing Doc. 38, pp. 8-9,
16-17). Presumably, Martin wants the Court to read these
statements as evidence that Smith is raising an individual
claim for malpractice against him. The Court is not
convinced, however, that this is Smith's intent.
Martin, who is both an attorney and represented by an
attorney, Smith is proceeding pro se and does not
appear to be a sophisticated litigant. Smith has been clear
that his intent is to represent his mother's interests.
Smith states he hired Martin to “go after William C.
Swearingen, Robert and Donna Lenard, and Peoples National
Bank to recover what rightfully belonged to Bonnie Smith
Swearingen's Estate.” (Doc. 38, p. 17)
(emphasis added). Further, Smith requests that all
restitution be paid into Swearingen's trust, not to
himself. (Doc. 38, pp. 12-13). Thus, Smith's goal appears
to be to obtain restitution to the estate of his mother, for
whom he is a plenary guardian, not to obtain any individual
relief. Thus, the Court finds Smith is proceeding solely in
his representative capacity and is not raising any
independent claims for relief.
Smith is proceeding solely in his representative as a
co-guardian of his mother's estate, his citizenship is
the same as hers-Indiana. And because all of the Defendants
are citizens of the State of Illinois, complete diversity
jurisdiction exists between the parties. Defendant
Martin's Motion to Dismiss (Doc. 48) is therefore
DENIED. The Motion to Amend or Correct First
Amended Complaint filed by Plaintiff Bonnie Smith Swearingen
(Doc. 52), construed as a response to Defendant's motion,
is DENIED as moot.
IS SO ORDERED.