United States District Court, D. Arizona
ORDER
Dominic W. Lanza, United Slates District Judge.
The
Court has an independent obligation to determine whether it
has subject-matter jurisdiction. Ruhrgas AG v. Marathon
Oil Co., 526 U.S. 574, 583 (1999). Pursuant to Rule
12(h)(3) of the Federal Rules of Civil Procedure, “[i]f
the court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”
Defendant
USAA Casualty Insurance Company removed this action on April
10, 2019 solely on the basis of diversity jurisdiction.
Diversity jurisdiction exists when there is complete
diversity of citizenship between the plaintiff and the
defendants and the amount in controversy exceeds $75, 000,
exclusive of interests and costs. 28 U.S.C. § 1332. A
controversy meets this requirement when “all the
persons on one side of it are citizens of different states
from all the persons on the other side.”
Strawbridge v. Curtiss, 7 U.S. 267 (1806). Having
reviewed the Notice of Removal to determine if subject matter
jurisdiction exists, the Court finds that the Notice of
Removal is facially deficient because it fails to
affirmatively set forth the facts necessary to determine
Plaintiff Robert Landseadel's citizenship.
The
Notice of Removal states that “Plaintiff is a citizen
of Arizona for federal diversity jurisdiction purposes
because the Complaint alleges that Plaintiff was a temporary
resident of Arizona at all material times.” (Doc. 1
¶ 3.) And indeed, the Complaint alleges that Plaintiff
“is and was at all times material herein, a temporary
resident of Maricopa County, Arizona.” (Doc. 1-3 ¶
2.) But the factual allegation that Plaintiff is a
resident of Arizona does not establish that he is a
citizen of Arizona for purposes of establishing
diversity jurisdiction, and in fact, the allegation that he
is a temporary resident of Arizona suggests that he
probably isn't an Arizona citizen.[1] “It has
long been settled that residence and citizenship [are] wholly
different things within the meaning of the Constitution and
the laws defining and regulating the jurisdiction of the . .
. courts of the United States; and that a mere averment of
residence in a particular state is not an averment of
citizenship in that state for the purpose of
jurisdiction.” Steigleder v. McQuesten, 198
U.S. 141, 143 (1905). “To be a citizen of a state, a
natural person must first be a citizen of the United States.
The natural person's state citizenship is then determined
by her state of domicile, not her state of residence. A
person's domicile is her permanent home, where
she resides with the intention to remain or to which she
intends to return.” Kanter v. Warner-Lambert
Co., 265 F.3d 853, 858-59 (9th Cir. 2001) (emphasis
added) (citations omitted). See also Id. (“In
this case, neither Plaintiffs' complaint nor
[Defendants'] notice of removal made any allegation
regarding Plaintiffs' state citizenship. Since the party
asserting diversity jurisdiction bears the burden of proof,
[Defendants'] failure to specify Plaintiffs' state
citizenship was fatal to Defendants' assertion of
diversity jurisdiction.”). Thus, an allegation
regarding Plaintiff's state of temporary residence fails
to establish his state of domicile-his permanent home-and has
no bearing on the determination of his citizenship for
diversity purposes.
The
party seeking to invoke diversity jurisdiction has the burden
of proof, Lew v. Moss, 797 F.2d 747, 749-50 (9th
Cir. 1986), by a preponderance of the evidence. McNatt v.
Allied-Signal, Inc., 972 F.2d 1340 (9th Cir. 1992);
see 13B Federal Practice § 3611 at 521 & n.
34. There is a strong presumption against removal
jurisdiction. Gaus v. Miles, Inc., 980 F.2d 564, 566
(9th Cir. 1992) (“Federal jurisdiction must be rejected
if there is any doubt as to the right of removal in the first
instance.”).
To cure
this pleading deficiency, the Court will require the removing
Defendant to file an amended notice of removal that
affirmatively states Plaintiffs citizenship. Star Ins.
Co. v. West, 2010 WL 3715155, *2 (D. Ariz. 2010);
see also NewGen, LLC v. Safe Cig, LLC, 840 F.3d 606,
612 (9th Cir. 2016) (“Courts may permit parties to
amend defective allegations of jurisdiction at any stage in
the proceedings.”). Defendant is advised that its
failure to timely comply with this order shall result in the
remand of this action without further notice for lack of
subject matter jurisdiction.
Accordingly,
IT IS ORDERED that removing Defendant USAA
Casualty Insurance Company shall file an amended notice of
removal properly stating a jurisdictional basis for this
action no later than May 6, 2019.
IT
IS FURTHER ORDERED that if Defendant fails to file
an amended notice of removal by May 6, 2019, the Clerk of
Court shall remand this action to state court on May
7, 2019.
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Notes:
[1] The allegation in the Complaint that
Plaintiff is and has been a temporary resident of one county
in Arizona does not preclude the possibility that his
permanent home and place of ...