United States Court of Federal Claims.

GREAT WEST CAUSALITY INSURANCE COMPANY, et al., Plaintiffs,

v.

The UNITED STATES, Defendant.

 

No. 13–961C

(Filed: May 9, 2014)

 

ORDER OF DISMISSAL

MARY ELLEN COSTER WILLIAMS Judge

Background

*1 On December 6, 2013, Plaintiffs Great West Causality Insurance Company and Bernasek Trucking (“Bernasek”) filed a complaint seeking damages from the Government for an accident that occurred on or about December 7, 2011. Plaintiffs allege that a crane operator at the Fort Indiantown Gap National Guard Base in Pennsylvania dropped cargo on a semi-trailer belonging to Bernasek “during an unload.” Plaintiffs seek $49,639.85 in damages, representing $17,289.85 for the resulting damage to the semi-trailer, $31,600 in lost income for the nine weeks the semitrailer was allegedly out of service, and $750 for Bernasek’s insurance deductible.

 

On February 6, 2014, Defendant moved to dismiss Plaintiffs’ complaint for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1) of the Rules of the Court of Federal Claims on the ground that the claim sounds in tort. Plaintiffs did not file a response to Defendant’s motion.

 

Discussion

The party seeking jurisdiction bears the burden of establishing jurisdiction by a preponderance of the evidence. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988) (citations omitted). If subject-matter jurisdiction cannot be established, the Court must dismiss plaintiff’s complaint. RCFC 12(h)(3); see also Tindle v. United States, 56 Fed. Cl. 337, 341 (2003).

 

The Tucker Act grants this Court jurisdiction to hear claims “against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort….” 28 U.S.C. § 1491(a)(1) (2012). Plaintiffs’ claim arises from an alleged accident at a National Guard base “when cargo was dropped,” causing damage to Bernasek’s semi-trailer. As such, Plaintiffs’ claim sounds in tort. See Wieman v. United States, 230 Ct. Cl. 563, 569 (1982) (finding that plaintiff’s claim for damage to trailers plaintiff used in the performance of its Government contract sounded in tort). Because the plain language of the Tucker Act excludes claims sounding in tort from the Court of Federal Claims’ jurisdiction, the Court lacks jurisdiction to hear Plaintiffs’ claim. Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1343 (Fed.Cir.2008) (citing 28 U.S.C. § 1491(a)(1)).FN1

 

FN1. Plaintiffs do not allege that they had an express or implied contract with the Government. Nor do they identify a claim against the Government founded on the Constitution, an Act of Congress, or a regulation of an executive department.

 

Conclusion

Defendant’s motion to dismiss is GRANTED. The Clerk of Court is directed to dismiss the complaint for lack of jurisdiction.

United States District Court,

N.D. Indiana,

Fort Wayne Division.

Stacy E. LAKE, Plaintiff,

v.

William E. HEZEBICKS, Stan Koch Sons Trucking, and Stan Koch Sons Trucking, Inc., Defendants.

 

Cause No. 1:14–CV–143.

Signed May 9, 2014.

 

Edward E. Beck, Shambaugh Kast Beck & Williams LLP, Fort Wayne, IN, for Defendants.

 

OPINION and ORDER

ROGER B. COSBEY, United States Magistrate Judge.

*1 This case was filed in this Court on May 8, 2014, based on diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). (Docket # 1.) The complaint alleges that “Plaintiff, Stacy E. Lake, is a resident of Fort Wayne, Allen County, Indiana”; “Defendant, William E. Hezebicks, is believed to be a resident of Ashtabula, Ohio”; “Defendant, Stan Koch Sons Trucking, is believed to be a resident of Ardmore, Oklahoma”; and “Defendant, Stan Koch Sons Trucking, Inc., is believed to be incorporated under the laws of the State of Minnesota maintaining its principal office in Golden Valley, Minnesota….” (Compl.¶¶ 1–4.)

 

The complaint, however, is inadequate in several ways. First, it is well-settled that “[a]llegations of federal subject matter jurisdiction may not be made on the basis of information and belief, only personal knowledge.” Yount v. Shashek, No. Civ. 06–753–GPM, 2006 WL 4017975, at * 10 n. 1 (S.D.Ill.Dec.7, 2006) (citing Am.’s Best Inns, Inc. v. Best Inns of Abilene, L.P., 980 F.2d 1072, 1074 (7th Cir.1992)); Ferolie Corp. v. Advantage Sales & Mktg., LLC, No. 04 C 5425, 2004 WL 2433114, at * 1 (N.D.Ill. Oct.28, 2004); Hayes v. Bass Pro Outdoor World, LLC, No. 02 C 9106, 2003 WL 187411, at *2 (N.D.Ill. Jan.21, 2003); Multi–M Int’l, Inc. v. Paige Med. Supply Co., 142 F.R.D. 150, 152 (N.D.Ill.1992). Consequently, Plaintiff must amend her complaint to allege Defendants’ citizenship on the basis of personal knowledge rather than belief.

 

Second, although paragraph five of the complaint alleges that the individual parties are all citizens of their respective states, this allegation improperly equates residency with citizenship. Residency is meaningless for purposes of diversity jurisdiction; an individual’s citizenship is determined by his or her domicile. Dakuras v. Edwards, 312 F.3d 256, 258 (7th Cir.2002); see Heinen v. Northrop Grumman Corp., 671 F.3d 669, 670 (7th Cir.2012) (“But residence may or may not demonstrate citizenship, which depends on domicile-that is to say, the state in which a person intends to live over the long run.”); Guar. Nat’l Title Co. v. J.E. G. Assocs., 101 F.3d 57, 58–59 (7th Cir.1996) (explaining that statements concerning a party’s “residency” are not proper allegations of citizenship as required by 28 U.S.C. § 1332); see also 28 U.S.C. § 1332. Therefore, the Court must be advised of the individuals parties’ domicile, rather than their residence, as the former determines citizenship.

 

Finally, as the party seeking to invoke federal diversity jurisdiction, Plaintiff bears the burden of demonstrating that the requirement of complete diversity has been met. Chase v. Shop ‘N Save Warehouse Foods, Inc., 110 F.3d 424, 427 (7th Cir.1997). Plaintiff, however, has failed to identify how Stan Koch Sons Trucking is organized; i.e., whether it is a corporation or an unincorporated association. Plaintiff is reminded that for purposes of establishing diversity jurisdiction, a corporation’s citizenship is different than that of an unincorporated association. Thomas v. Guardsmark, LLC., 487 F.3d 531, 533 (7th Cir.2007). Corporations “are deemed to be citizens of the state in which they are incorporated and the state in which they have their principal place of business.” N. Trust Co. v. Bunge Corp., 899 F.2d 591, 594 (7th Cir.1990); see 28 U.S.C. § 1332(c)(1). The term “principal place of business” refers to the corporation’s “nerve center”-the place where a corporation’s officers direct, control, and coordinate the corporation’s activities. Hertz Corp. v. Friend, 559 U.S. 77, 92–93, 130 S.Ct. 1181, 175 L.Ed.2d 1029 (2010).

 

*2 Conversely, “if a firm is not incorporated, its citizenship is determined by the citizenship of its proprietor, partners, members, or other participants.” Wild v. Subscription Plus, Inc., 292 F.3d 526, 528 (7th Cir.2002). Therefore, if Stan Koch Sons Trucking is an unincorporated association, the Court must be advised of the citizenship of all the members to ensure that none of its members share a common citizenship with Plaintiff.   Hicklin Eng’g, L.C. v. Bartell, 439 F.3d 346, 347 (7th Cir.2006). Moreover, citizenship must be “traced through multiple levels” for those members of Stan Koch Sons Trucking who are a partnership or an LLC, as anything less can result in a dismissal or remand for want of jurisdiction. Mut. Assignment & Indem. Co. v. Lind–Waldock & Co., LLC, 364 F.3d 858, 861 (7th Cir.2004). Accordingly, Plaintiff must amend her complaint to properly identify Stan Koch Sons Trucking’s organizational status.

 

Therefore, Plaintiff is ORDERED to supplement the record by filing an Amended Complaint reciting the parties’ citizenship on the basis of personal knowledge, and properly allege forth Stan Koch Sons Trucking’s organizational status.

 

SO ORDERED.