Opinion
Case No: 2:18-cv-532-FtM-99MRM
10-24-2018
PAUL E. GAVIN and LINDA V. GAVIN, Plaintiffs, v. TERAPHYSICS CORPORATION, LOUIS FISI, Defendants.
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This matter comes before the Court on review of Plaintiffs' Amended Complaint (Doc. 50) filed on October 23, 2018. Subject-matter jurisdiction is premised on the presence of diversity of citizenship between the parties. This requires complete diversity of citizenship, and that the matter in controversy exceed the sum or value of $75,000, exclusive of interest and costs. 28 U.S.C. § 1332(a) ; Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1261 (11th Cir. 2000). If the Court determines "at any time" that it lacks subject-matter jurisdiction, the Court must dismiss the case. Fed. R. Civ. P. 12(h)(3).
Plaintiffs state that they are "individuals residing in Lee County, Florida." (Doc. 50, ¶ 4). Plaintiffs also allege "upon information and belief" that Defendant Louis Fisi is a "resident of Ohio." (Id., ¶ 5). An individual is a citizen where he is domiciled, not necessarily where he is a resident. See McCormick v. Aderholt, 293 F.3d 1254, 1257 (11th Cir. 2002) ("Citizenship is equivalent to 'domicile' for purposes of diversity jurisdiction."). Domicile is the place of an individual's true, fixed, and permanent home and to which he intends to return whenever he is absent therefrom. See Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989) (citations omitted). A domicile is not synonymous with a residence, and it is possible for someone to reside in one place but be domiciled in another. See id.
Plaintiffs have failed to properly allege the citizenship of the parties; therefore, the Court cannot determine that diversity of citizenship is present. Plaintiffs will be provided an opportunity to state the presence of federal jurisdiction pursuant to 28 U.S.C. § 1653.
The Court notes a some additional issues with the Amended Complaint that should be remedied with the filing of the Second Amended Complaint:
1. Plaintiffs filed the exhibits to the Amended Complaint as separate docket entries titled "Supplement." (Docs. 51, 52). Plaintiffs should attach the exhibits to the same docket entry as the Second Amended Complaint.
2. The Amended Complaint does not include a certificate of service as required by the Court's Administrative Procedures for Electronic Filing at Sec. III.E.5.
3. The caption of the Amended Complaint states that Defendants are Teraphysics Corporation, Louis Fisi, et al. However, the body of the Amended Complaint only discusses Teraphysics Corporation and Louis Fisi. If there are no additional defendants, Plaintiffs should remove "et al." from the caption.
Accordingly, it is now
ORDERED:
Plaintiffs' Amended Complaint (Doc. 50) is dismissed for lack of subject-matter jurisdiction without prejudice to filing a Second Amended Complaint on or before October 31, 2018. Failure to file a Second Amended Complaint by this date will result in this matter being closed without further notice.
DONE and ORDERED in Fort Myers, Florida this 24th day of October, 2018.
/s/ _________
SHERI POLSTER CHAPPELL
UNITED STATES DISTRICT JUDGE Copies: All Parties of Record