Vandervest v. Wisconsin Cent., Ltd., No. 96-C-677.

• Court: United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
• Writing for the Court: MYRON L. GORDON
• Citation: 936 F. Supp. 601
• Parties: Lynn J. VANDERVEST and Rick E. Vandervest, Plaintiffs, v. WISCONSIN CENTRAL, LTD., State Farm Mutual Automobile Insurance Company, WEA Insurance Corporation, and An Unknown Insurance Carrier, Defendants.
• Docket Number: No. 96-C-677.
• Decision Date: 12 September 1996

936 F. Supp. 601

Lynn J. VANDERVEST and Rick E. Vandervest, Plaintiffs,
v.
WISCONSIN CENTRAL, LTD., State Farm Mutual Automobile Insurance Company, WEA Insurance Corporation, and An Unknown Insurance Carrier, Defendants.

No. 96-C-677.

United States District Court, E.D. Wisconsin.

September 12, 1996.

936 F. Supp. 602

Daniel D. Whetter, Green Bay, WI, for Plaintiffs.

Oppenheimer, Wolff & Donnelly by James A. Fletcher and Jennifer K. Muenchrath, Minneapolis, MN, for Defendant Wisconsin Central Ltd.

DECISION and ORDER

MYRON L. GORDON, District Judge.

On June 7, 1996, defendant Wisconsin Central, Ltd. "WCL", filed a "Notice of Removal" of this action which asserts a state law personal injury claim arising out of an automobile accident between the automobile driven by Lynn Vandervest and a train owned and operated by WCL. The action was originally filed in the circuit court of Kewaunee county. In its notice of removal, WCL alleges that this action is properly removable under 28 U.S.C. § 1441 because it is an action where the matter in controversy exceeds the sum of $50,000, exclusive of interest and cost, and the real parties in interest are citizens of different states. See 28 U.S.C. § 1332(a)(1).

Presently before the court is the plaintiffs' "Motion in Opposition to Removal." In their

936 F. Supp. 603

motion, the plaintiffs contend that the action should be remanded to state court because this court lacks subject matter jurisdiction. Specifically, they contend that diversity jurisdiction does not exist under 28 U.S.C. § 1332 because State Farm Automobile Insurance Company "State Farm" and WEA Insurance Corporation "WEA" — both citizens of the state of Wisconsin — are not nominal parties in this action as alleged by WCL in its notice of removal. In addition, the plaintiffs assert that diversity between the parties does not exist because WCL is a Wisconsin corporation. It is undisputed that the plaintiffs are citizens of the state of Wisconsin

In a removal action, a district court is required to remand a case to state court if it determines, any time before final judgment, that it lacks subject matter jurisdiction over the case. See 28 U.S.C. § 1447(c). Where, as here, the jurisdiction of the court is challenged as a factual matter, the party invoking jurisdiction of the court has the burden to demonstrate that the jurisdictional allegations are supported by competent proof. See Grafon Corp. v. Hausermann, 602 F.2d 781, 783 (7th Cir.1979).

Under 28 U.S.C. § 1332(a)(1), diversity of citizenship exists where

the matter in controversy exceeds the sum or value of $50,000, exclusive of interest and costs, and is between ... citizens of different states;....

For purposes of determining diversity, "a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business...." 28 U.S.C. § 1332(c)(1). Insofar as this action involves multiple corporate defendants, the plaintiff must differ in citizenship from each defendant — the rule of "complete diversity" — in order for subject matter jurisdiction to exist under § 1332. See Strawbridge v. Curtiss, 3 Cranch 267, 7 U.S. 267, 2 L.Ed. 435 (1806); Bagdon v. Bridgestone/Firestone, Inc., 916 F.2d 379, 381 (7th Cir.1990); cert. denied, 500 U.S. 952, 111 S.Ct. 2257, 114 L.Ed.2d 710 (1991). However, in determining whether complete diversity exists, courts must only look at those parties "who are real and substantial parties to the controversy." Navarro Savings Association v. Lee, 446 U.S. 458, 461, 100 S.Ct. 1779, 1782, 64 L.Ed.2d 425 (1980). The inclusion of nominal parties in the pleadings does not affect diversity jurisdiction. 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). Thus, removal is proper under 28 U.S.C. § 1441 if complete diversity exists between the real parties in interest.

The plaintiffs claim that WCL is incorporated in the state of Wisconsin, and hence not of diverse citizenship, based on the allegation in WCL's answer which was filed on June 11, 1996, that "it is a Wisconsin corporation...." (Original Complaint ¶ 3.)...