United States District Court, D. North Dakota, Southwestern Division
Charles S. Miller, Jr., Magistrate Judge
This action arises out of plaintiff’s dissatisfaction with defendant’s representation of her son in a criminal case filed in La Cross County, Wisconsin. Before the court are a “Rule 12(B)Motion to Dismiss” and a “Motion to Strike Amended Complaint” filed by defendant. Also before the court is a “Motion for Preliminary Injunction” filed by plaintiff’s son, Adam Yeoman. For the reasons set forth below, the “Motion to Strike Amended Complaint” is granted as is the “Rule 12(B) Motion to Dismiss” in part. The “Motion for Preliminary Injunction” is deemed moot.
According to plaintiff, her son, Adam Yeoman (hereinafter referred to simply as “Adam”), was charged in La Crosse County, Wisconsin, in connection with his role in an attempted armed robbery of a tavern in 2008. Adam entered a guilty plea after the trial court denied his motions to suppress and was subsequently sentenced to 25 years in prison and 15 years of extended supervision. His conviction and sentence were affirmed on direct appeal by the Wisconsin Court of Appeals.
Plaintiff initiated the above-entitled action in March 2015 against defendant, a Wisconsin attorney that she purportedly hired in 2009 to assist in Adam’s plea negotiations and represent Adam on appeal. In her complaint she asserts claims against defendant for breach of contract, intentional infliction of emotional distress, and unfair business practices under Wisconsin statute. She alleges that defendant mishandled Adam’s direct appeal by failing to file suppression hearing transcripts with the Wisconsin Court of Appeals, respond to the arguments made by the State to the Wisconsin Court of Appeals regarding evidence collection, and timely petition the Wisconsin Supreme Court for further review once the Wisconsin Court of Appeals had affirmed Adam’s conviction and sentence. As the basis for this court’s exercise of jurisdiction, she cites 28 U.S.C. § 1332.
On August 28, 2015, defendant filed a motion to dismiss plaintiff’s complaint on the grounds that the amount in controversy does not meet the jurisdiction threshold of $75, 000, that this court lacks personal jurisdiction over him, that North Dakota is not an appropriate forum for this dispute, that plaintiff has failed to state claims for which relief may be granted, and that plaintiff has failed to join an indispensable party, i.e., his law firm.
On September 29, 2015, plaintiff filed a response in opposition to defendant’s motion to dismiss along with an amended complaint in which she: (1) joins Adam as a co-plaintiff; (2) joins defendant’s law firm as a defendant; and (3) and asserts an additional claim for fraudulent representation. On October 8, 2015, Adam filed what is styled as a motion for preliminary injunction.
On October 30, 2015, defendant filed a motion to strike the amended complaint along with a reply in support of his motion to dismiss. On November 2, 2015, he filed a response to Adam’s motion for preliminary injunction.
A. Subject Matter Jurisdiction
District courts have original diversity jurisdiction over civil actions when: (1) the matter in controversy exceeds $75, 000; and (2) there is complete diversity of the parties, that is, all of the plaintiffs have citizenship different from that of all defendants. 28 U.S.C. § 1332(a); see also Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005) (citing Caterpillar Inc., 519 U.S. at 68); Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 553 (2005) (“In a case with multiple plaintiffs and multiple defendants, the presence in the action of a single plaintiff from the same State as a single defendant deprives the district court of original diversity jurisdiction over the entire action.”).
1. Diversity of Citizenship
Here, plaintiff filed an amended complaint in which she addresses one of the issues raised by defendant in his motion for dismissal-the inclusion of his law firm as a party defendant. However, she made another crucial change that, at first blush, appears to destroy subject matter jurisdiction.
Plaintiff’s amended complaint joins Adam as a co-plaintiff. Adam and defendant both hail from Wisconsin. See McCracken v. Murphy, 328 F.Supp.2d 530, 50 (E.D. Pa. 2004) (“For inmates, citizenship for diversity purposes is the state in which the inmate was domiciled prior to incarceration, unless the inmate plans to live elsewhere when he is released in which event citizenship would be that state.”). Consequently, Adam’s inclusion in this action would mean that there is no longer complete ...