Opinion
No. 03 C 252
January 15, 2003
MEMORANDUM ORDER
Jerome Bressert, Jason Carter, Leon Bressert and Travis Cochran have just filed suit against David Gerszewski ("Gerszewski"), invoking federal subject matter jurisdiction on diversity of citizenship grounds. This memorandum order is issued sua sponte to require plaintiffs' counsel to cure the flawed jurisdictional allegations in the Complaint.
Although this action is framed in terms of seeking both arbitration under the Federal Arbitration Act ( 9 U.S.C. § 4) and a declaratory judgment pursuant to. 28 U.S.C. § 2201, plaintiffs' knowledgeable counsel recognizes that the invocation of those federal statutes does not implicate a federal question such as to bring Section 1331 jurisdiction into play. But when counsel looks properly to Section 1332 instead, he mistakenly identifies the place of residence rather than the state of citizenship of each plaintiff (see Complaint ¶¶ 3 through 6), while Gerszewski's
All further references to Title 28's provisions will simply take the form "Section —."
London, England residence is spoken of without identifying him either as a citizen of a state (Section 1332(a)(1)) or as a citizen or subject of a foreign state (Section 1332(a)(2)). As taught by Held v. Held, 137 F.3d 998, 1000 (7th Cir. 1998) quoting Guaranty Nat'l Title Co. v. J.E.G. Assocs., 103. F.3d 57, 59 (7th Cir. 1996):
Of course, allegations of residence are insufficient to establish diversity jurisdiction. It is well-settled that "[w]hen the parties allege residence but not citizenship, the court must dismiss the suit."
But this Court sees no point in sticking plaintiffs with the cost of another $150 filing fee if, as would seem to be the case, the defects identified here are readily curable.
Accordingly plaintiffs' counsel is ordered to file in this Court's chambers, on or before January 27, 2003, an amendment to the Complaint limited to amending complaint ¶¶ 3 through 7 appropriately. To keep Gerszewski fully informed, counsel is also ordered to send copies of this memorandum order and of the amendment to his counsel if known or, if not known, to Gerszewski himself. If no appropriate amendment were to be timely filed, this Court will be constrained to dismiss this action for lack of subject matter jurisdiction.