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explaining that "an affidavit with respect to the citizenship of the parties" may eliminate any doubts about diversity
Summary of this case from Ill. Extension Pipeline Co. v. SummannOpinion
No. 93-1459.
Argued November 10, 1993.
Decided November 16, 1993.
Steven K. Jambois, Mary L. Chirillo (argued), Kralovec, Jambois Schwartz, Chicago, IL, for Linda E. Dausch.
Barry G. Bollinger, Craig G. Stifler, Kelly Ann Giampa (argued), Bollinger, Ruberry Garvey, Chicago, IL, for Greg Rykse.
David G. Mountcastle, Mountcastle, Kelly Dyer, Wheaton, IL, for Knox Presbyterian Church Defendant-Appellee.
Kathleen Mulligan (argued), James W. Teevans, Gardner, Carton Douglas, Chicago, IL, for Chicago Presbytery.
Appeal from the United States District Court for the Northern District of Illinois.
Despite protracted litigation of the issue prior to oral argument, our examination of the record in this case makes it clear that the question of whether this case was properly within the diversity jurisdiction of the district court remains to be resolved definitively.
According to ¶ 7 of the First Amended Complaint of plaintiff Linda E. Dausch, filed on August 6, 1992, this case was based upon diversity of citizenship. The complaint alleges that Linda Dausch "is presently a resident of the Commonwealth of Pennsylvania" ( ¶ 1); "defendant Greg Rykse is a resident of Naperville, Illinois" ( ¶ 2); "defendant Knox Presbyterian Church is located in Naperville, Illinois" ( ¶ 3); "defendant Chicago Presbytery is located in Chicago, Illinois" ( ¶ 4); and "defendant Presbyterian Church (U.S.A.) is located in Louisville, Kentucky" ( ¶ 5). Because the Presbyterian Church (U.S.A.) is no longer a party to this action, the last allegation need not concern us. The remaining statements are not proper allegations of citizenship as required by 28 U.S.C. § 1332. For natural persons, state citizenship is determined by one's domicile. Gilbert v. David, 235 U.S. 561, 569, 35 S.Ct. 164, 166, 59 L.Ed. 360 (1915); America's Best Inns, Inc. v. Best Inns of Abilene, L.P., 980 F.2d 1072, 1074 (7th Cir. 1992); Poulos v. NAAS Foods, Inc., 959 F.2d 69, 70 n. 1 (7th Cir. 1992); Galva Foundry Co. v. Heiden, 924 F.2d 729, 730 (7th Cir. 1991). For Corporations, the provisions of 28 U.S.C. § 1332(c) set forth the appropriate standards.
We note that the Knox Presbyterian Church and the Chicago Presbytery state in their briefs that they are citizens of Illinois. It is, however, the duty of the plaintiff to state, in more than these conclusory terms, the basis for compliance with the jurisdictional norms of the diversity statute.
Defective allegations of jurisdiction may be amended on appeal. 28 U.S.C. § 1653. In order to avoid dismissal for lack of subject matter jurisdiction, the plaintiff must enlarge the record to show the citizenship of each party as of the date that the complaint was filed. America's Best Inns, 980 F.2d at 1074 (stating obligation of the plaintiff to establish jurisdiction). This case, like Hemmings v. Barian, 822 F.2d 688 (7th Cir. 1987), "is a case of a confusing pleading which raises doubt whether there really is diversity." Id. at 693. In such circumstances, we require the plaintiff to submit an affidavit with respect to the citizenship of the parties. Id. (citing, e.g., Kanzelberger v. Kanzelberger, 782 F.2d 774, 777 (7th Cir. 1986) (stating district courts should resolve jurisdictional doubt with supplementary factual proceedings)). See also Saturday Evening Post Co. v. Rumbleseat Press, Inc., 816 F.2d 1191, 1195-96 (7th Cir. 1987) (stating that "parties' sloppiness about jurisdiction is inexcusable, but not fatal"). Cf. Matchett v. Wold, 818 F.2d 574, 576 (7th Cir.), cert. denied, 484 U.S. 897, 108 S.Ct. 230, 98 L.Ed.2d 189 (1987) (remanding case for further exploration of diversity allegation).
Within 15 days of this opinion, the plaintiff shall submit to this court an affidavit stating with precision the basis for the assertion of diversity jurisdiction. In light of the long history of jurisdictional difficulties in this case, failure to comply with this opinion within the time prescribed may result in dismissal of the action.
IT IS SO ORDERED.