Sandy Oestriecher, et al v. Goodyear Tire & Rubber Company (The), et al

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 19-14329
Non-Argument Calendar
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D.C. Docket No. 3:19-cv-00798-BJD-PDB

SANDY OESTRIECHER,
KURT OESTRIECHER,
Plaintiffs-Appellants,

versus

GOODYEAR TIRE & RUBBER COMPANY (THE),
a foreign corporation,
SUMITOMO RUBBER USA, LLC,
a foreign limited liability company
f.k.a. Goodyear Dunlop Tires North America, LTD.,

Defendants-Appellees.
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Appeal from the United States District Court
for the Middle District of Florida
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(March 20, 2020)
Before WILLIAM PRYOR, LUCK and LAGOA, Circuit Judges.
PER CURIAM:
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Sandy and Kurt Oestriecher move us to modify our February 26, 2020,
opinion, which affirmed the sua sponte dismissal without prejudice of their
amended complaint. We GRANT the motion, and we VACATE our earlier opinion
and substitute the following revised opinion.
The district court sua sponte dismissed without prejudice the Oestriechers
amended complaint for lack of subject-matter jurisdiction. The Oestriechers sought
to invoke federal jurisdiction based on diversity of citizenship, 28 U.S.C. § 1332,
so their complaint had to “include the citizenship of each party . . . [to establish]
that no plaintiff [was] a citizen of the same state as any defendant.” Travaglio v.
Am. Exp. Co., 735 F.3d 1266, 1268 (11th Cir.2013). The couple does not dispute
that—despite being apprised how to remedy the jurisdictional defect and the
consequences of failing to comply—their amended complaint failed to allege either
the state of incorporation for Goodyear Tire & Rubber Company, see 28 U.S.C.
§ 1332(c)(1), or the identity and citizenship of each member of Sumitomo Rubber
USA, LLC, see Mallory & Evans Contractors & Eng’rs, LLC v. Tuskegee Univ.,
663 F.3d 1304, 1305 (11th Cir. 2011).
The Oestriechers challenge the denial of their motion to set aside the order
of dismissal, but we cannot say that the district court abused its discretion. The
Oestriechers failed to correct the deficiencies in the supplemental notice to their
original complaint and in their amended complaint, and the district court made
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clear that the couple could refile their action. The Oestriechers argue that the
dismissal of their action could operate as a dismissal with prejudice if the statute of
limitation in Louisiana applies, but in the words of the district court, the couple
“has given little reason to suspect that Louisiana law will apply where [they]
allege[] the subject accident occurred in Florida and Defendants’ products were
marketed, manufactured, and used in Florida.” We will not fault the district court
for rejecting an argument that is purely speculative.
We AFFIRM the dismissal of the Oestriechers amended complaint without
prejudice.
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