UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

JOSEPH COSTANZA, )

)

Plaintiff, )

)

v. ) CAUSE NO. 1:13-CV-260

)

MENARD, INC. and )

VULCAN LADDER COMPANY, )

)

Defendants. )

OPINION AND ORDER

This case was removed to this Court from the Allen Superior Court by Defendant

Menard, Inc. (“Menards”) based on diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). 

(Docket # 2). The Notice of Removal alleges that Plaintiff Joseph Costanza is a resident of the

state of Indiana, Menards is incorporated and has its principal place of business in Wisconsin,

and that Defendant Vulcan Ladder Company (“Vulcan”) is not an Indiana corporation and does

not have its principal place of business in Indiana. (Notice of Removal ¶¶ 2-3). 

Menards’ Notice of Removal is inadequate. As the party seeking to invoke federal

diversity jurisdiction, Menards 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). In the Seventh Circuit, this requires the defendant support its allegations of

jurisdiction with competent proof, and establish “to a reasonable probability that jurisdiction

exists.” Id. (quoting Gould v. Artisoft, Inc., 1 F.3d 544, 547 (7th Cir. 1997). Menards’

allegation that its investigation indicated “Vulcan Ladder Company is not an Indiana corporation

or company and does not have it principal place of business in Indiana” fails to satisfy this

standard. 

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There are two shortcomings to Menards’ Notice of Removal. First, Menards does not

indicate how Vulcan is organized. 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 (2010). 

Conversely, a limited liability company’s (“LLC”) citizenship “for purposes of . . .

diversity jurisdiction is the citizenship of its members.” Cosgrove v. Bartolotta, 150 F.3d 729,

731 (7th Cir. 1998). Therefore, if Vulcan is an LLC, 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 Vulcan 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). In sum, Menards must first determine Vulcan’s organizational status, and

second allege, with competent proof, Vulcan’s state(s) of citizenship.

Second, Menards fails to affirmatively establish Vulcan’s state(s) of citizenship. Simply

alleging Vulcan is not an Indiana corporation or company falls short of the Seventh Circuit’s

requirement that the burdened party identify the citizenship of each party to the litigation. 

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Thomas, 487 F.3d at 533. Put another way, Menards cannot make a “naked declaration that

there is diversity of citizenship” by stating they do not think Vulcan’s citizenship is Indiana. Id.

Therefore, Menards is ORDERED to supplement the record forthwith as to the

citizenship of Vulcan, determining its organizational status and stating its citizenship through all

applicable layers of ownership.

SO ORDERED.

Enter for this 4th day of September, 2013.

/S/ Roger B. Cosbey 

Roger B. Cosbey,

United States Magistrate Judge

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