Diaz v. Newcomer et al, No. 1:2013cv00199 - Document 6 (N.D. Ind. 2013)

Court Description: OPINION AND ORDER re 2 NOTICE OF REMOVAL filed by Defendants Edward Newcomer, Gamesa Technology Corporation Inc. Defendants ORDERED to file by 7/5/2013 an Amended Notice of Removal as outlined in Order. Signed by Magistrate Judge Roger B Cosbey on 6/21/13. (cer)

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA FORT WAYNE DIVISION AMBER DIAZ, formerly known as Amber Yohman, Plaintiff, v. EDWARD NEWCOMER, GAMESA TECHNOLOGY CORPORATION, INC., and ENTERPRISE FM TRUST, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) CAUSE NO. 1:13-CV-199 OPINION AND ORDER This case was removed to this Court from the Allen Superior Court by Defendants based on diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). (Docket # 2.) The Notice of Removal alleges that, [a]ccording [to] the plaintiff s Complaint, the plaintiff is a citizen of the state of Indiana and that Defendant Enterprise FM Trust is a statutory trust incorporated under the laws of the state of Delaware. (Notice of Removal ¶ 7.) Defendants Notice of Removal, however, is inadequate for two reasons. First, although Defendants allege that Plaintiff Amber Diaz is a citizen of Indiana, they do so according to the Complaint, which states that Plaintiff was a resident of Indiana. (Compl. ¶ 1.) But the residency of each party is meaningless for purposes of diversity jurisdiction, as citizenship is what matters. 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 28 U.S.C. § 1332. It is well-settled that when the parties allege residence but not citizenship, the court must dismiss the suit. Held v. Held, 1 137 F.3d 998, 1000 (7th Cir. 1998) (internal quotation marks and citation omitted); see generally Smoot v. Mazda Motors of Am., Inc., 469 F.3d 675, 677-78 (7th Cir. 2006). As a an individual, Diaz s state citizenship is determined by [her] domicile. Dausch v. Rykse, 9 F.3d 1244, 1245 (7th Cir. 1993); see Am. s Best Inns, Inc. v. Best Inns of Abilene, L.P., 980 F.2d 1072, 1074 (7th Cir. 1992) ( In federal law citizenship means domicile, not residence. ). But Defendants rely on the Complaint s allegation that Diaz is an Indiana resident to determine her citizenship. (Notice of Removal ¶ 7; see Compl. ¶ 1.) Residence, however, does not necessarily equate with domicile. 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. ); In re Sprint Nextel Corp., 593 F.3d 669, 674 (7th Cir. 2010) ( Granted, being a resident isn t the same thing as being a citizen, that is to say, a domiciliary. ). Therefore, alleging that Diaz is a citizen of Indiana merely because the Complaint alleges she resides there is insufficient to establish her citizenship. Furthermore, the Notice of Removal also fails to establish the citizenship of Enterprise FM Trust because a trust s citizenship is determined by the citizenship of the trustee, Grede v. Bank of N.Y. Mellon, 598 F.3d 899, 901 (7th Cir. 2010); May Dep t Stores Co. v. Fed. Ins. Co., 305 F.3d 597, 599 (7th Cir. 2002); see Navarro Sav. Ass n v. Lee, 446 U.S. 458, 464-66 (1980), not where it is incorporated. Yet the Notice of Removal makes no mention of the trustee of Enterprise FM Trust or the trustee s citizenship. As such, Defendants must amend their Notice of Removal to make these allegations. Accordingly, Defendants are ORDERED to supplement the record by filing an Amended 2 Notice of Removal on or before July 5, 2013, properly alleging the citizenship of Plaintiff Amber Diaz, which is determined by her domicile, and the citizenship of Defendant Enterprise FM Trust, which is based on the citizenship of its trustee. SO ORDERED. Enter for this 21st day of June, 2013. /S/ Roger B. Cosbey Roger B. Cosbey, United States Magistrate Judge 3

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