IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

GREAT MIDWEST INSURANCE :

COMPANY,

:

Plaintiff,

:

vs. CA 09-0818-CG-C

:

MANNING INC.,et al.,

:

Defendants.

REPORT AND RECOMMENDATION

This cause is before the undersigned for issuance of a report and

recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B), on the complaint

(Doc. 1), defendant Manning, Inc.’s motion to dismiss for lack of subjectmatter jurisdiction (Doc. 11), and plaintiff’s response and motion to amend

complaint (Doc. 13). After consideration of the foregoing pleadings, it is the

undersigned’s recommendation that the plaintiff’s motion to amend its

complaint (Doc. 13) be GRANTED thereby MOOTING defendant’s motion

to dismiss (Doc. 11) inasmuch as the amended complaint for declaratory

judgment and relief (Exhibit A to Doc. 13) cures the deficiency contained in

the original complaint (Doc. 1) noted by the moving defendant. 

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FINDINGS OF FACT

1. In its complaint for declaratory judgment and relief filed

December 17, 2009, plaintiff Great Midwest Insurance Company alleged, in

significant part, that defendant Glenda Lee “is an adult resident of Mobile

County, Alabama and has never been a resident of the State of Michigan.”

(Doc. 1, at ¶ 3 (emphasis supplied)) 

2. Soon after being served with the complaint, defendant Manning,

Inc. filed its motion to dismiss for lack of subject-matter jurisdiction arguing

that a “complaint that alleges the state of residence, but not the state of

citizenship, of an individual defendant is insufficient to establish subjectmatter jurisdiction under 28 U.S.C. § 1332[,]” and urging this Court to dismiss

this action. (Doc. 11, at 1-2) 

3. Great Midwest combined its response to Manning’s motion to

dismiss with a motion for leave to amend its complaint on February 8, 2010.

(Doc. 13) Acknowledging that citizenship of an individual, not residence, is

the key factor (id. at 2), plaintiff seeks leave of this Court to file an amended

complaint, same to read, in relevant part, as follows: “Defendant Glenda Lee

[] is an adult citizen of Mobile County, Alabama and has never been a citizen

of the State of Michigan.” (Doc. 13, Exhibit A, Amended Complaint for

Case 1:09-cv-00818-CG-C Document 21 Filed 03/04/10 Page 2 of 8
1 All decisions of the former Fifth Circuit handed down prior to October 1, 1981

are binding precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1207

3

Declaratory Judgement and Relief, at ¶3 (emphasis supplied))

4. Defendant Manning did not file a reply to plaintiff’s response

(see Doc. 12, at 1 (“Plaintiff is ORDERED to file a response to this motion

[to dismiss] on or before February 18, 2010 and defendant Manning its reply

not later than February 25, 2010.”)) nor did either defendant file a response

to plaintiff’s motion for leave to file an amended complaint, though extended

the opportunity so to do (see Doc. 14). Instead, implicitly signaling to the

Court the appropriate disposition of the pending motions, the only document

filed by the parties since entry of the undersigned’s order dated February 9,

2010 (Doc. 14) is the Rule 26(f) report filed February 19, 2010 (Doc. 15).

CONCLUSIONS OF LAW

1. It is clearly established that for purposes of diversity jurisdiction,

“[c]itizenship, not residence, is the key fact that must be alleged in the

complaint to establish diversity for a natural person.” Taylor v. Appleton, 30

F.3d 1365, 1367 (11th Cir. 1994); see also Kerney v. Fort Griffin Fandangle

Ass’n, Inc., 624 F.2d 717, 719 (5th Cir. 1980) (“An allegation of residence is

insufficient to establish diversity jurisdiction. The plaintiff must allege

citizenship.”);1 Sheldon Good & Co. v. San Carlos Condominium

Case 1:09-cv-00818-CG-C Document 21 Filed 03/04/10 Page 3 of 8
(11th Cir. 1981). 

4

Development, LLC, 2008 WL 5401648, *1 n.2 (S.D. Ala. 2008) (“‘Citizenship,

not residence, is the key fact that must be alleged . . . to establish diversity for

a natural person.’”). 

2. Given the deficiency contained in the original complaint filed in

this case, alleging the residence of defendant Glenda Lee as opposed to her

citizenship, it is clear that this Court could dismiss this cause without prejudice

due to the failure to allege (and establish) complete diversity of citizenship.

Leos v. Alabama Watersports, Inc., 2001 WL 394901 (S.D. Ala. 2001).

However, it is just as clear that this Court can allow an amendment to cure the

identified deficiency in the original complaint. See Kerney, supra, 624 F.2d at

718-719 & 719 (“The defendants filed motions to dismiss for lack of

jurisdiction over the subject matter of the action, asserting that because Kerney

had alleged residence, not citizenship, and because he could not ascertain the

citizenship of parties whose identity he did not know, he had not affirmatively

established jurisdiction. After a hearing, the district court granted the

defendants’ motions, concluding that the record failed to show diversity of

citizenship. The court dismissed the action without prejudice, granting Kerney

the right to amend the pleadings to show jurisdiction and move for

Case 1:09-cv-00818-CG-C Document 21 Filed 03/04/10 Page 4 of 8
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reinstatement. . . . The first order dismissing Kerney’s original complaint with

leave to amend and to move for reinstatement was proper. Kerney did not

satisfy the burden, always on plaintiff, of establishing diversity of citizenship

between the plaintiff and all defendants, for he alleged only the residence and

not the citizenship of the parties. An allegation of residence is insufficient to

establish diversity jurisdiction. The plaintiff must allege citizenship.”).

3. Rule 15(a)(2) of the Federal Rules of Civil Procedure provides

that a party may seek leave of the Court to amend its complaint and it counsels

courts to “freely give leave when justice so requires.” Id. 

“[U]nless there is a substantial reason to deny leave to amend,

the discretion of the district court is not broad enough to permit

denial.” Dussouy v. Gulf Coast Inv. Group, 660 F.2d 594, 598

(5th Cir. 1981). The U.S. Supreme Court has held that undue

delay and futility are adequate bases for denying leave to amend.

In the absence of any apparent or declared reason-

-such as undue delay, bad faith or dilatory motive

on the part of the movant, repeated failure to cure

deficiencies by amendments previously allowed,

undue prejudice to the opposing party by virtue of

allowance of the amendment, futility of

amendment, etc.– the leave sought should, as the

rules require, be “freely given.” Of course, the

grant or denial of an opportunity to amend is

within the discretion of the District Court.

Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222

(1962). 

Case 1:09-cv-00818-CG-C Document 21 Filed 03/04/10 Page 5 of 8
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Burger King Corp. v. Weaver, 169 F.3d 1310, 1319 (11th Cir.), cert.

dismissed, 528 U.S. 948, 120 S.Ct. 370, 145 L.Ed.2d 287 (1999); see Moore

v. Baker, 989 F.2d 1129, 1131 (11th Cir. 1993) (“While a decision whether to

grant leave to amend is clearly within the discretion of the district court, a

justifying reason must be apparent for denial of a motion to amend.”). 

4. In this case, the defendants do not oppose plaintiff’s motion to

amend its complaint (see Docket Sheet); therefore, this Court should exercise

its discretion to allow the amendment. Burger King Corp., supra, 169 F.3d at

1319 (“‘[U]nless there is a substantial reason to deny leave to amend, the

discretion of the district court is not broad enough to permit denial.’”).

Accordingly, the undersigned recommends that plaintiff’s motion for leave to

amend its complaint (Doc. 13) be GRANTED.

5. Because the amended complaint cures the deficiency in the

original complaint, same alleging that Glenda Lee is an adult citizen of Mobile

County, Alabama (Doc. 13, Exhibit A, at ¶ 3), the undersigned further

recommends that defendant Manning’s motion to dismiss for lack of subjectmatter jurisdiction (Doc. 11) be found MOOT.

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CONCLUSION

It is recommended that the Court GRANT plaintiff’s motion for leave

to amend its complaint (Doc. 13) thereby MOOTING defendant Manning’s

motion to dismiss (Doc. 11).

The instructions which follow the undersigned’s signature contain

important information regarding objections to the report and recommendation

of the Magistrate Judge.

DONE this the 4th day of March, 2010.

 s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

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2 Effective December 1, 2009, the time for filing written objections was extended

to “14 days after being served with a copy of the recommended disposition[.]” Fed.R.Civ.P.

72(b)(2). 

8

MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND

RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND

FINDINGS CONCERNING NEED FOR TRANSCRIPT

l. Objection. Any party who objects to this recommendation or anything in it must,

within fourteen (14) days of the date of service of this document, file specific written

objections with the Clerk of this court. Failure to do so will bar a de novo determination by

the district judge of anything in the recommendation and will bar an attack, on appeal, of the

factual findings of the Magistrate Judge. See 28 U.S.C. § 636(b)(1)(C); Lewis v. Smith, 855

F.2d 736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B,

1982)(en banc). The procedure for challenging the findings and recommendations of the

Magistrate Judge is set out in more detail in SD ALA LR 72.4 (June 1, 1997), which

provides that:

A party may object to a recommendation entered by a magistrate judge in

a dispositive matter, that is, a matter excepted by 28 U.S.C. § 636(b)(1)(A),

by filing a ‘Statement of Objection to Magistrate Judge’s Recommendation’

within ten days2

 after being served with a copy of the recommendation,

unless a different time is established by order. The statement of objection

shall specify those portions of the recommendation to which objection is

made and the basis for the objection. The objecting party shall submit to

the district judge, at the time of filing the objection, a brief setting forth the

party’s arguments that the magistrate judge’s recommendation should be

reviewed de novo and a different disposition made. It is insufficient to

submit only a copy of the original brief submitted to the magistrate judge,

although a copy of the original brief may be submitted or referred to and

incorporated into the brief in support of the objection. Failure to submit a

brief in support of the objection may be deemed an abandonment of the

objection. 

A magistrate judge's recommendation cannot be appealed to a Court of Appeals;

only the district judge's order or judgment can be appealed.

2. Transcript (applicable Where Proceedings Tape Recorded). Pursuant to 28 U.S.C.

§ 1915 and FED.R.CIV.P. 72(b), the Magistrate Judge finds that the tapes and original

records in this case are adequate for purposes of review. Any party planning to object to this

recommendation, but unable to pay the fee for a transcript, is advised that a judicial

determination that transcription is necessary is required before the United States will pay the

cost of the transcript.

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