## Facts

- Eighteen households, including Randall and Heather Lozar, owned or lived on property near a Birds Eye Foods, Inc. fruit-processing facility in Fennville, Michigan.
- Plaintiffs alleged the facility contaminated local groundwater through spray irrigation of processing wastewater, an unpermitted landfill, and buried debris.
- Plaintiffs alleged well water became discolored, foul-smelling, staining, and undrinkable, and claimed related health effects to residents and pets.
- Plaintiffs filed a six-count complaint asserting only state-law claims: negligence per se, remediation, nuisance, trespass, personal injuries (including medical monitoring), and negligence.
- Plaintiffs invoked only diversity jurisdiction under 28 U.S.C. § 1332.
- Birds Eye moved under Rule 12(b)(6) to dismiss all claims except nuisance.
- The court raised subject-matter jurisdiction sua sponte and reviewed whether the complaint adequately alleged complete diversity.

## Issues

1. Whether the complaint sufficiently alleged complete diversity of citizenship under 28 U.S.C. § 1332 to establish federal subject-matter jurisdiction.
2. If diversity was not adequately pleaded, whether dismissal was required and how that affected the pending Rule 12(b)(6) motion.

## Decision

- The court dismissed the complaint without prejudice for inadequate jurisdictional allegations.
- The court held the complaint’s conclusory assertion that the case was “between citizens of different states,” coupled with allegations of “residence,” did not plead citizenship or complete diversity.
- The court denied Birds Eye’s partial Rule 12(b)(6) motion without prejudice as moot because no operative complaint remained.
- The court granted plaintiffs leave to file an amended complaint to cure the jurisdictional pleading defect.

## Legal Principles

- Federal courts have a continuing, nonwaivable duty to examine subject-matter jurisdiction and must address jurisdictional defects even if no party raises them.
- The party invoking diversity jurisdiction bears the burden to plead facts showing complete diversity and the jurisdictional amount.
- For § 1332 purposes, citizenship (domicile) must be alleged; residence alone is insufficient.
- When jurisdictional allegations are deficient but potentially curable, dismissal is properly without prejudice and amendment may be permitted.
- If a court determines it lacks subject-matter jurisdiction, it must dismiss the action, making merits motions inappropriate until jurisdiction is established.

## Conclusion

The court disposed of the case on pleading of diversity jurisdiction: because plaintiffs failed to allege the parties’ citizenship and complete diversity, the complaint was dismissed without prejudice, the defendant’s partial motion to dismiss was denied as moot, and plaintiffs were allowed to amend to properly plead jurisdiction.


Lozar v. Birds Eye Foods, Inc., 678 F. Supp. 2d 589 (W.D. Mich. 2009)