United States District Court, D. Minnesota
John Johnson, 39266th Avenue Northeast, Fridley, MN 55432,
M. Hagstrom & William A. McNab, WINTHROP & WEINSTINE,
PA, for defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION
R. TUNHEIM CHIEF JUDGE
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
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. (Id. ¶¶ 11-12.) Johnson
brought a personal-injury claim against MUY Pizza under the
Minnesota Workers' Compensation Act. (Id.
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.)
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.)
objects to the Magistrate Judge's report and
recommendation. (Obj., Feb. 9, 2018, Docket No. 33.)
STANDARD OF REVIEW
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).
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)).
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, ...