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Johnson v. Muy Pizza Minnesota, LLC

United States District Court, D. Minnesota

May 16, 2018

DAVID JOHN JOHNSON Plaintiff,
v.
MUY PIZZA MINNESOTA, LLC, Defendant.

          David John Johnson, 39266th Avenue Northeast, Fridley, MN 55432, pro se.

          Alex M. Hagstrom & William A. McNab, WINTHROP & WEINSTINE, PA, for defendant.

          ORDER ADOPTING REPORT AND RECOMMENDATION

          JOHN R. TUNHEIM CHIEF JUDGE

         Plaintiff David John Johnson brought this action against Defendant MUY Pizza Minnesota, LLC (“MUY Pizza”), alleging that he suffered a personal injury as a result of MUY Pizza's negligence. MUY Pizza moved to dismiss Johnson's action for lack of subject-matter jurisdiction. On January 26, 2018, Magistrate Judge Steven E. Rau recommended granting MUY Pizza's motion. After an independent review of the files, records, and proceedings, the Court will conclude that it lacks subject-matter jurisdiction and will dismiss the action.

         BACKGROUND

         Since 2006, Johnson has been a delivery driver at a Pizza Hut owned by MUY Pizza in St. Louis Park, Minnesota. (Compl. ¶ 4, Aug. 9, 2017, Docket No. 1.) Johnson alleges that MUY Pizza's drivers were forced to wash dishes while standing in one to two inches of water and that he developed foot mycosis and incurred medical expenses as a result.[1] (Id. ¶¶ 11-12.) Johnson brought a personal-injury claim against MUY Pizza under the Minnesota Workers' Compensation Act.[2] (Id. ¶¶ 26-29.)

         MUY Pizza moved to dismiss for lack of subject-matter jurisdiction. (Mot. to Dismiss, Aug. 31, 2017, Docket No. 6.) In particular, MUY Pizza argues that the Court lacks subject-matter jurisdiction because (1) Johnson has not established diversity jurisdiction because he is a resident of Minnesota, and (2) Johnson has not alleged a federal question. (Mem. Supp. Mot. to Dismiss at 7-13, Aug. 31, 2017, Docket No. 8.) Johnson opposed MUY Pizza's motion, arguing that he is a resident of Wisconsin. (Opp. Mem. at 2, Oct. 5, 2017, Docket No. 21.) Johnson cites evidence that (1) his rented room in Fridley is “temporary”; (2) he has a Wisconsin driver's license; (3) his car insurance lists a Wisconsin address; (4) he is a registered voter and has been called for jury duty in LaCrosse County, Wisconsin; and (5) he is only temporarily living in Fridley because his company is located in Fridley. (Id.)

         On January 26, 2018, the Magistrate Judge issued a report and recommendation (“R&R”), recommending that the Court grant MUY Pizza's motion to dismiss for lack of subject-matter jurisdiction. (R&R at 1, Jan. 26, 2018, Docket No. 32.) The Magistrate Judge concluded that Johnson “is-and has been for the past several years-physically present in Minnesota” and that Johnson only has a “floating intention” to return to Wisconsin. (Id. at 5-6.) Additionally, the Magistrate Judge concluded that Johnson's allegations do not support a claim based on a federal question. (Id. at 6.)

         Johnson objects to the Magistrate Judge's report and recommendation. (Obj., Feb. 9, 2018, Docket No. 33.)

         DISCUSSION

         I. STANDARD OF REVIEW

         Upon the filing of an R&R by a magistrate judge, a party may “serve and file specific written objections to the proposed findings and recommendations.” Fed.R.Civ.P. 72(b)(2); accord D. Minn. LR 72.2(b)(1). “The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3); accord D. Minn. LR 72.2(b)(3).

         “‘Federal courts are courts of limited jurisdiction' possessing ‘only that power authorized by Constitution and statute.'” Gunn v. Minton, 568 U.S. 251, 256 (2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). “A motion to dismiss pursuant to Rule 12(b)(1) challenges the Court's subject-matter jurisdiction and requires the Court to examine whether it has authority to decide the claims.” Damon v. Groteboer, 937 F.Supp.2d 1048, 1063 (D. Minn. 2013). To promote judicial economy, the Court may examine evidence outside the pleadings when reviewing a jurisdictional question. Osborn v. United States, 918 F.2d 724, 729-30 (8th Cir. 1990). The plaintiff must establish jurisdiction “by competent proof and by a preponderance of the evidence.” Eckerberg v. Inter-State Studio & Publ'g Co., 860 F.3d 1079, 1084 (8th Cir. 2017) (quoting Russell v. New Amsterdam Cas. Co., 325 F.2d 996, 998 (8th Cir. 1964)).

         Subject matter jurisdiction under 28 U.S.C. § 1332 exists “only where there is complete diversity, that is ‘where no defendant holds citizenship in the same state where any plaintiff holds citizenship.'” Junk v. Terminix Int'l Co., 628 F.3d 439, 445 (8th Cir. 2010) (quoting In re Prempro Prods. Liab. Litig., 591 F.3d 613, 620 (8th Cir. 2010)). Citizenship is determined by a person's (1) “physical presence in a state” and (2) “intent to remain there indefinitely.” Altimore v. Mount Mercy Coll., 420 F.3d 763, 768 (8th Cir. 2005). A “floating intention” to return to a former domicile is insufficient to establish citizenship. Gilbert v. David, 235 U.S. 561, ...


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