United States District Court, S.D. Alabama, Southern Division
KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE
action is before the Court sua sponte on review of
its subject matter jurisdiction. Plaintiff Rockhill Insurance
Company (“the Plaintiff”) initiated this action
by filing a complaint (Doc. 1) with the Court, alleging
diversity of citizenship under 28 U.S.C. § 1332(a) as
the sole basis for jurisdiction. See Fed. R. Civ. P.
8(a)(1) (“A pleading that states a claim for relief
must contain a short and plain statement of the grounds for
the court's jurisdiction…”).
When a plaintiff files suit in federal court, [the plaintiff]
must allege facts that, if true, show federal subject matter
jurisdiction over [the] case exists. Taylor v.
Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994). Those
allegations, when federal jurisdiction is invoked based upon
diversity, must include the citizenship of each party, so
that the court is satisfied that no plaintiff is a citizen of
the same state as any defendant. Triggs v. John Crump
Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir. 1998)
(“Diversity jurisdiction requires complete diversity;
every plaintiff must be diverse from every
defendant.”). Without such allegations, district courts
are constitutionally obligated to dismiss the action
altogether if the plaintiff does not cure the deficiency.
Stanley v. C.I.A., 639 F.2d 1146, 1159 (5th Cir.
Unit B Mar. 1981); see also DiMaio v. Democratic
Nat'l Comm., 520 F.3d 1299, 1303 (11th Cir. 2008)
(“Where dismissal can be based on lack of subject
matter jurisdiction and failure to state a claim, the court
should dismiss on only the jurisdictional grounds.”
(internal quotation marks omitted)).That is, if a
complaint's factual allegations do not assure the court
it has subject matter jurisdiction, then the court is without
power to do anything in the case. See
Goodman ex rel. Goodman v. Sipos, 259 F.3d 1327, 1331,
n.6 (11th Cir. 2001) (“ ‘[A district] court must
dismiss a case without ever reaching the merits if it
concludes that it has no jurisdiction.' ” (quoting
Capitol Leasing Co. v. FDIC, 999 F.2d 188, 191 (7th
Cir. 1993))); see also Belleri v. United States, 712
F.3d 543, 547 (11th Cir. 2013) (“We may not consider
the merits of [a] complaint unless and until we are assured
of our subject matter jurisdiction.”).
Travaglio v. Am. Exp. Co., 735 F.3d 1266, 1268 (11th
Cir. 2013) (emphasis added)See also, e.g., Ray
v. Bird & Son & Asset Realization Co., Inc., 519
F.2d 1081, 1082 (5th Cir. 1975) (“The burden of
pleading diversity of citizenship 1396 (5th Cir.
1974)). Upon review of the complaint (Doc. 1), the
undersigned finds that the Plaintiff must correct the
following deficiencies in its allegations as to the
citizenship of Defendant Sandra Rogers:
1. With regard to the suit against Sandra Rogers in her
individual capacity, the Plaintiff alleges only that Sandra
Rogers “was a resident of
Alabama at all times relevant hereto.” (Doc. 1 at 1,
¶ 2 (emphasis added)). The Eleventh Circuit has
repeatedly stressed that residence alone does not establish
citizenship for purposes of § 1332(a). See Taylor v.
Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994)
(“Citizenship, not residence, is the
key fact that must be alleged . . . to
establish diversity for a natural person.” (emphasis
added)); Travaglio v. Am. Exp. Co., 735 F.3d 1266,
1269 (11th Cir. 2013) (“As we indicated in remanding
this case for jurisdictional findings, the allegations in
Travaglio's complaint about her citizenship are fatally
defective. Residence alone is not enough.”);
Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d
1330, 1342 n.12 (11th Cir. 2011) (“Ordinarily, the
complaint must allege the citizenship, not residence, of the
natural defendants.”); Beavers v. A.O. Smith Elec.
Prods. Co., 265 F. App'x 772, 778 (11th Cir. 2008)
(per curiam) (unpublished) (“The plaintiffs'
complaint alleges only the residence of the nearly 100
plaintiffs, not their states of citizenship. Because the
plaintiffs have the burden to affirmatively allege facts
demonstrating the existence of jurisdiction and failed to
allege the citizenship of the individual plaintiffs, the
district court lacked subject matter jurisdiction on the face
of the complaint.” (internal citation and quotation
omitted)); Crist v. Carnival Corp., 410 F. App'x
197, 200 (11th Cir. 2010) (per curiam) (unpublished)
(“The allegation that Crist is a ‘resident'
of Florida is insufficient for diversity jurisdiction
purposes because residency is not the equivalent of
citizenship.” (citing Cong. of Racial Equal. v.
Clemmons, 323 F.2d 54, 58 (5th Cir. 1963)
(“Diversity of citizenship, not of residence, is
required under 28 U.S.C.A. § 1332. Wherever jurisdiction
is predicated upon the citizenship (or alienage) of the
parties, it should be noted that since residence
is not the equivalent of citizenship, an allegation that a
party is a resident of a certain state or foreign country is
not a sufficient allegation of his
citizenship.” (quotation and citation
omitted) (emphasis added))).
“Citizenship is equivalent to ‘domicile' for
purposes of diversity jurisdiction. A person's domicile
is the place of his true, fixed, and permanent home and
principal establishment, and to which he has the intention of
returning whenever he is absent therefrom.”
McCormick v. Aderholt, 293 F.3d 1254, 1257-58 (11th
Cir. 2002) (citations, quotations, and footnote omitted).
“And domicile requires both residence in a state
and ‘an intention to remain
there indefinitely....' ” Travaglio, 735
F.3d at 1269 (quoting McCormick, 293 F.3d at 1258
(internal quotation marks omitted)) (emphasis added). See
also Mas, 489 F.2d at 1399 (“For diversity
purposes, citizenship means domicile; mere residence in the
State is not sufficient.”).
2. The Plaintiff has also sued Sandra Rogers in her capacity
as representative of the Estate Dustin Rogers, deceased. For
purposes of diversity jurisdiction, he legal representative
of the estate of a decedent shall be deemed to be a citizen
only of the same State as the decedent…” 28
U.S.C. § 1332(c)(2).The Plaintiff has not alleged
decedent Dustin Rogers's state of citizenship.
allegations of jurisdiction may be amended, upon terms, in
the trial or appellate courts.” 28 U.S.C. § 1653.
“[L]eave to amend should be freely granted when
necessary to cure a failure to allege jurisdiction
properly.” Majd-Pour v.Georgiana Cmty. Hosp.,
Inc., 724 F.2d 901, 903 n.1 (11th Cir. 1984). Upon
consideration, the Plaintiff is ORDERED to
file, no later than Monday,
November 13, 2017, an
amended complaint that corrects the above-noted deficiencies
in its allegations supporting diversity jurisdiction under
§ 1332(a), or that alleges some alternative basis for
subject matter jurisdiction. In filing the amended complaint,
the Plaintiff must abide by the following directives:
• The amended complaint shall reproduce the entire
original complaint as amended, see S.D. Ala. CivLR
15(a) (“Any amendment to a pleading … must
reproduce the entire pleading as amended and may not
incorporate any prior pleading by reference.”), and
will become the operative complaint in this
• The Plaintiff must file the amended complaint as a
freestanding pleading and not as an exhibit attached
to a notice, motion, etc.
filing made in contravention of these directives will be
deemed nonresponsive to this Order and will be summarily
ordered stricken. Moreover, the failure to file an amended
complaint as ordered may result in dismissal of this action
for lack of subject matter jurisdiction under Federal Rule of
Civil Procedure 12(h)(3) (“If the court determines at
any time that it lacks subject-matter jurisdiction, the court
must dismiss the action.”).
the Plaintiff, a corporation, has yet to file a disclosure
statement as required by Federal Rule of Civil Procedure 7.1
(applicable to “nongovernmental corporate”
parties) and S.D. Ala. CivLR 7.1 (applicable to “[a]ll
non-governmental artificial entities appearing as
parties”). The Plaintiff is ORDERED to
do so no later than Monday, November 13,