Thomas Slottke, Sr. v. State of Wisconsin - DILHR ( 2018 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 29, 2018 *
Decided August 14, 2018
Before
DIANE P. WOOD, Chief Judge
MICHAEL S. KANNE, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 17-3329
THOMAS E. SLOTTKE, SR., Appeal from the United States District
Plaintiff-Appellant, Court for the Eastern District of Wisconsin.
v. No. 16-CV-1392-PP
WISCONSIN DEPARTMENT OF Pamela Pepper,
WORKFORCE DEVELOPMENT, et al., Judge.
Defendants-Appellees.
ORDER
Thomas Slottke, a citizen of Wisconsin, appeals the dismissal of his suit for lack
of federal jurisdiction. He had sued the owner of the company that formerly employed
him, the former employer’s insurer, and the State of Wisconsin’s Department of
Workforce Development for their actions in regard to his applications for worker’s
compensation and federal disability benefits. Slottke contends on appeal that
federal-question and diversity jurisdiction both exist. We affirm the judgment.
* We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 17-3329 Page 2
Slottke’s complaint identifies misdeeds that, he believes, occurred in connection
with administrative proceedings on his state and federal benefits applications.
According to the complaint, the owner of the company, Thomas Harrington, and his
company’s insurer, the Fireman’s Fund Insurance Company, engaged in defamation,
fraud, blackmail, theft, intimidation, and harassment. Slottke further alleged that the
Wisconsin Department of Workforce Development, which handled his worker’s
compensation claim, failed to intervene when these wrongs occurred and violated his
right to a fair hearing guaranteed under the Department’s guidelines. He asserted that
he was suing “under state law,” and he sought an order requiring the Department to
pay a $60 million “fine” and to fine the other two defendants millions of dollars.
The district court, on its own, dismissed the suit for want of subject-matter
jurisdiction. The court concluded that there was not “complete diversity” among the
parties, and thus no diversity jurisdiction under 28 U.S.C. § 1332, because the
Department is an agency of the State of Wisconsin, and because Slottke and Harrington
were both “residents” of Wisconsin. The court then considered whether any of Slottke’s
allegations could liberally be construed as raising a claim under federal law,
see 28 U.SC. § 1331, but concluded that he asserted causes of action under state law
only.
On appeal Slottke points to two federal statutes that he believes Harrington and
the Fireman’s Fund violated. He asserts, first, that his defamation claim arises under
28 U.S.C. § 4101, but this statute deals solely with the enforceability of a foreign
judgment. Indeed, there is no federal claim for simple defamation by a private actor.
Bovee v. Broom, 732 F.3d 743, 744 (7th Cir. 2013). He also cites 18 U.S.C. § 249, but this
statute prescribes the penalties that may be sought by government prosecutors for
“hate crimes.”
Slottke generally challenges the dismissal of his claims against the Department
and asserts that “Federal laws were broken.” Although Slottke alleged that the
Department failed to protect him from the misdeeds of the other defendants, a public
entity has no constitutional duty to prevent an injury from private actors, see Burks v.
Raemisch, 555 F.3d 592, 596 (7th Cir. 2009) (citing DeShaney v. Winnebago Cty. Dep't of Soc.
Servs., 489 U.S. 189 (1989)). Further, Slottke’s allegation that the Department violated his
right to a fair hearing under the Department’s guidelines cannot be construed as a due-
process claim under the Fourteenth Amendment, because a violation of state law is not
itself a Constitutional injury, Snowden v. Hughes, 321 U.S. 1, 11 (1944); Whitman v. Nesic,
368 F.3d 931, 935 n.1 (7th Cir. 2004).
No. 17-3329 Page 3
Slottke also argues generally that his complaint “meets” the requirements for
diversity jurisdiction. The district judge concluded that diversity jurisdiction was
destroyed because the Department is an agency of the State, which is not a citizen for
purposes of the diversity statute, see Moor v. Alameda Cty., 411 U.S. 693, 717 (1973);
Adden v. Middlebrooks, 688 F.2d 1147, 1150 (7th Cir. 1982); Pub. Sch. Ret. Sys. of Missouri v.
State St. Bank & Tr. Co., 640 F.3d 821, 826 (8th Cir. 2011), and because Slottke alleged that
both he and Harrington reside in Wisconsin. But a person’s residence may differ from
his or her citizenship (domicile), and it is diverse citizenship that the diversity statute
requires, Heinen v. Northrop Grumman Corp., 671 F.3d 669, 670 (7th Cir. 2012); Hunter v.
Amin, 583 F.3d 486, 491–92 (7th Cir. 2009).
Nonetheless, Slottke failed to plead the citizenship of Harrington and the
Fireman’s Fund, and “[w]hen the parties [in a diversity suit] allege residence but not
citizenship, the court must dismiss” the complaint. Guar. Nat. Title Co. v. J.E.G. Assocs.,
101 F.3d 57, 59 (7th Cir. 1996); see also Meyerson v. Harrah's E. Chi. Casino, 299 F.3d 616,
617 (7th Cir. 2002). Slottke asserts in his reply brief that one of the defendants—the
Fireman’s Fund—is not a citizen of Wisconsin because its headquarters are in
California. But even if the Fireman’s Fund were diverse from Slottke, diversity
jurisdiction requires complete diversity, meaning that no defendant may be a citizen of
the same state as the plaintiff, Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267 (1806);
Gustafson v. zumBrunnen, 546 F.3d 398, 400–01 (7th Cir. 2008), and Slottke’s failure to
plead Harrington’s citizenship means that we are unable to determine whether there is
complete diversity between him and all of the defendants. See Camico Mut. Ins. Co.
v. Citizens Bank, 474 F.3d 989, 992 (7th Cir. 2007).
Relatedly, Slottke asks us to “[b]y-pass the question of complete diversity,” a
request that can be understood as a motion for this court to use its authority to preserve
federal jurisdiction by dismissing dispensable, nondiverse parties. See Newman-Green,
Inc. v. Alfonzo-Larrain, 490 U.S. 826, 838 (1989); Altom Transp., Inc. v. Westchester Fire Ins.
Co., 823 F.3d 416, 420 (7th Cir. 2016). But even assuming again that the Fireman’s Fund
and Slottke are diverse, dismissal of the nondiverse parties—the Department and
Harrington—would be proper only if, in their absence, a federal court could
nonetheless award the plaintiff the complete relief he seeks. U.S. Bank Nat'l Ass'n
v. Collins-Fuller T., 831 F.3d 407, 410 (7th Cir. 2016). Here, without the nondiverse
parties, a court would be unable to accord Slottke total relief because he seeks an order
enjoining the Department to fine the other two defendants.
No. 17-3329 Page 4
We normally permit the parties an opportunity under 28 U.S.C. § 1653 to amend
the jurisdictional allegations, see e.g., Heinen v. Northrop Grumman Corp., 671 F.3d 669,
670 (7th Cir. 2012); Smoot v. Mazda Motors of Am., Inc., 469 F.3d 675, 677 (7th Cir. 2006),
but we opt against that course here. The defects in Slottke’s jurisdictional allegations are
incurable. Even if there were diversity between Slottke and two of the defendants, there
is a necessary party, the Department, which is not a citizen under the diversity statute.
As a final matter, we point out that the parties have violated Circuit Rule 28 by
submitting appellate briefs that fail to disclose the citizenship of each party to this
appeal. Slottke’s omission violated Circuit Rule 28(a)(1), which requires the disclosure
of citizenship “if jurisdiction depends on diversity of citizenship.” And the counseled
appellees’ omissions violated Circuit Rule 28(b), which requires them to file a complete
jurisdictional summary if the appellant has failed to do so. Noncompliance by the
corporate appellee, the Fireman’s Fund, is less understandable than the violation by
Slottke, who is pro se. Indeed, we notified the Fireman’s Fund that its response brief did
not comply with Circuit Rule 28(b) and ordered an amended jurisdictional statement. In
its amended statement, however, the Fireman’s Fund still failed to identify its
citizenship, and that omission needlessly required us to make assumptions about its
citizenship. We remind the parties, and other attorneys practicing in this court, that we
rely on them to provide accurate jurisdictional information when we must decide
whether subject-matter jurisdiction exists. Baez-Sanchez v. Sessions, 862 F.3d 638, 639
(7th Cir. 2017) (Wood, C.J., in chambers).
When a counseled party violates Circuit Rule 28(b), we typically order that party
to show cause why sanctions are unwarranted. See e.g., Meyerson v. Harrah's E. Chi.
Casino, 299 F.3d 616 (7th Cir. 2002). We decline to do so here because we expect that this
violation will not happen again, having emphasized that Circuit Rule 28(a)(1) requires
the disclosure of citizenship even in a case dismissed for lack of diversity jurisdiction.
All pending motions are DENIED. The judgment of the district court is
AFFIRMED.