United States District Court, E.D. Kentucky, Central Division, Lexington
OPINION & ORDER
K. CALDWELL, CHIEF JUDGE.
matter is before the Court on plaintiff Robert Whitaker's
motion for default judgment against defendants Pitter Mann
and Knight Rush Enterprise. (DE 13). For the following
reasons, Plaintiff's motion will be denied.
Rule of Civil Procedure 55 governs default and default
judgment. Before a party can obtain a default judgment under
either Rule 55(b)(1) or Rule 55(b)(2), there must be an entry
of default as provided by Rule 55(a). In other words, the
entry of a default is a prerequisite to the entry of a
default judgment. Fed.R.Civ.P. 55(b)(1). Accordingly, the
Motion for Default Judgment (DE 13) will be DENIED. Whitaker
is instructed to seek an entry of default from the Clerk
before filing a motion for default judgment pursuant to Rule
from Whitaker's premature motion for default judgment,
there remains a question as to whether this Court has subject
matter jurisdiction over this case. A precondition to
entering default is that the district court must enjoy both
subject matter jurisdiction and personal jurisdiction (or in
rem/quasi in rem jurisdiction). See Kiesgen v. St. Clair
Marine Salvage, Inc., 724 F.Supp.2d 721, 729 (E.D. Mich.
2010) (where a “Court is without subject matter
jurisdiction over the case, [ ] its actions while the case
was pending are a nullity.”) (citing U.S. Fidelity
& Guar. Co. v. Thomas Solvent Co., 955 F.2d 1085,
1087 (6th Cir.1992) (where the Court did not have diversity
jurisdiction over the case, all actions in the district court
were void)); Evans v. Larchmont Baptist Church Infant
Care Ctr., Inc., 956 F.Supp.2d 695, 702 (E.D. Va. 2013).
complaint, Whitaker alleges that this Court has diversity
jurisdiction over his claims pursuant to 28 U.S.C. §
1332. (Compl. ¶ 7). Under 28 U.S.C. § 1332, the
Court has jurisdiction to hear causes of action where the
matter in controversy exceeds $75, 000 and is, among others,
between citizens of different states or between citizens of a
State and citizens or subjects of a foreign state. 28 U.S.C.
§ 1332(a)(1)-(2). To invoke jurisdiction, there must be
“complete diversity” between the parties, meaning
that no plaintiff may be a citizen of the same state of which
any defendant is a citizen. Glancy v. Taubman Ctrs.,
Inc., 373 F.3d 656, 664 (6th Cir. 2004) (citing
Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996));
Citizens Bank v. Plasticware, LLC, 830 F.Supp.2d
321, 325 (E.D. Ky. 2011).
resides in Kentucky. (Compl. ¶ 1). He alleges that
Pitter Mann and Knight Rush Enterprise are citizens of
Canada. (Compl. ¶ 2-3). According to the address he
provided the Court for service of process, he alleges that
defendant Progressive Casualty Insurance Company is licensed
to do business in Kentucky. (Compl. ¶ 4). As it stands,
Whitaker fails to establish diversity jurisdiction under 28
U.S.C. § 1332 for two reasons.
Whitaker has failed to allege the necessary jurisdictional
facts of Progressive's respective states of citizenship
and has not complied with 28 U.S.C. § 1332(c)(1). The
diversity of citizenship statute provides that a corporation
is a dual citizen of the state of incorporation and the state
where the corporation maintains its principal place of
business. 28 U.S.C. § 1332(c)(1). Whitaker does not
allege Progressive's state of incorporation or where it
maintains its principal place of business. In alleging that
diversity exists because Progressive is licensed to do
business in Kentucky, Whitaker has apparently conflated 28
U.S.C. § 1332(c), which governs the citizenship of
corporations for purposes of diversity of citizenship, with
28 U.S.C. § 1391(c), which governs venue. The two do not
the rule of “complete diversity” has not been
adequately satisfied here even assuming that Whitaker did
allege Progressive's state of incorporation and its
principal place of business. The only information provided to
the Court places Progressive's in Kentucky. This would
destroy “complete diversity” because it would
position Whitaker and Progressive, both alleged to be from
Kentucky, across the “v” from one another.
See § 1332(c)(1).
Court will permit Whitaker the opportunity to cure the defect
by allowing him to file a supplemental amendment to the
complaint that adequately establishes the necessary
jurisdictional facts. See 28 U.S.C. § 1653.
Absent the filing of the supplemental amendment to the
complaint within seven (7) days of the entry of this Order,
this action will be dismissed.
IT IS HEREBY ORDERED that:
Plaintiff's motion for default judgment (DE 13) as to
defendants Pitter Mann and Knight Rush Enterprise is DENIED
Pursuant to 28 U.S.C. § 1653, Plaintiff shall FILE a
supplemental amendment to the Complaint within seven (7) days
of the date of this Order properly setting forth Progressive
Casualty Insurance ...