NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued September 12, 2019

Decided October 1, 2019

Before

JOEL M. FLAUM, Circuit Judge

FRANK H. EASTERBROOK, Circuit Judge

DANIEL A. MANION, Circuit Judge

No. 18-1738

DION THOMAS,

Plaintiff-Appellant,

v.

BURNHAM TRUCKING COMPANY, INC.,

Defendant-Appellee.

Appeal from the United 

States District Court for the 

Northern District of Indiana, 

Fort Wayne Division.

No. 1:16-CV-112

William C. Lee, Judge.

Order

Dion Thomas, a truck driver employed by PTO Services, Inc., alleges that he was injured on February 26, 2014, when equipment furnished to PTO by Burnham Trucking 

Co. failed to operate properly. The suit began in state court and was removed under the

diversity jurisdiction. The district court granted summary judgment to Burnham, ruling 

that PTO acted as an independent contractor for Burnham, which therefore did not owe 

Thomas a duty of care under Indiana law. 2018 U.S. Dist. LEXIS 39536 (N.D. Ind. Mar. 

12, 2018). Thomas was entitled to workers’ compensation payments from PTO, the 

judge concluded, not to recovery in tort from a firm that hired PTO to provide transportation services.
No. 18-1738 Page 2

At the oral argument of this appeal, we asked the parties to file supplemental briefs 

addressing subject-matter jurisdiction. Thomas, a citizen of Indiana, alleged that Burnham, which was incorporated in Delaware, had its principal place of business—indeed, 

its sole employee—in Indiana. If that’s so, jurisdiction is missing because citizens of Indiana are on both sides of the case. But Burnham asserted that its principal place of 

business was in Chicago. If that’s so, then Burnham’s two corporate citizenships were 

Delaware and Illinois, so that the parties are of diverse citizenship. 28 U.S.C. §1332(c)(1). 

We use the past tense deliberately, because Burnham ended its operations before this 

suit was filed.

Burnham’s supplemental filing tells us that it has not been an operational entity and 

has not had any employees since May 31, 2015. By then, Burnham asserts, it was an indirect subsidiary of ArcelorMittal USA, LLC, but its corporate existence continued. Its 

only possible principal place of business on February 25, 2016, when the suit was filed, 

and March 31, 2016, when it was removed, was Chicago, where ArcelorMittal manages 

its subsidiaries. A corporation’s principal place of business is its headquarters, see Hertz 

Corp. v. Friend, 559 U.S. 77 (2010), and Chicago must have been Burnham’s headquarters 

in early 2016, since it had no other place of business.

On December 2, 2016, Burnham merged into ArcelorMittal and ceased to have a 

separate existence. It might have been appropriate to substitute ArcelorMittal as the real 

party in interest, but as none of the litigants has asked for that step we shall resolve the 

appeal in Burnham’s name. See Fed. R. Civ. P. 25(c); Luxliner P.L. Export, Co. v. 

RDI/Luxliner, Inc., 13 F.3d 69, 71 (3d Cir. 1993). Jurisdiction depends on the state of affairs when a suit begins, so it is not necessary to explore whether ArcelorMittal is a citizen of Indiana.

Jurisdictional allegations may be amended on appeal. 28 U.S.C. §1653. We deem 

Burnham’s post-argument memorandum as an amendment to its notice of removal. 

None of the facts it alleges is contested, so a remand is unnecessary.

On the merits, we agree with the district court’s assessment, which need not be repeated. And Thomas could not gain even if the district court were wrong and he should 

be treated as an employee (or at least an agent) of Burnham. For then Burnham would 

be his employer, and recovery in tort would be forbidden by the state’s Workers’ Compensation Act. See Ind. Code §22-3-2-6; Nickels v. Bryant, 839 N.E.2d 1211, 1215 (Ind. 

App. 2005) (“even where an employee has multiple employers, the Act remains the employee’s exclusive remedy”). Thomas has received a workers’-compensation remedy 

through PTO; he cannot get another through Burnham.

AFFIRMED