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
Continuing Care Risk Retention Group Incorporated
(“Defendant”) removed this action on January 2,
2018 solely on the basis of diversity jurisdiction. (Doc. 1.)
Diversity jurisdiction exists when there is complete
diversity of citizenship between the plaintiffs 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, the Court finds it is
facially deficient because it does not allege the citizenship
of any of Plaintiffs. The Notice of Removal states that
“Plaintiffs allege to be Arizona residents.”
(Doc. 1 ¶ 10.) But the factual allegation that
Plaintiffs are residents of Arizona does not
establish they are citizens of Arizona for purposes
of establishing diversity jurisdiction. “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 Plaintiffs' state of residence fails to
establish their state of domicile-their permanent home-and
has no bearing on the determination of their citizenship for
diversity purposes.[1]
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).
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
Continuing Care Risk Retention Group Incorporated shall file
an amended notice of removal properly stating a
jurisdictional basis for this action no later than
May 16, 2019.
IT
IS FURTHER ORDERED that if Defendant fails to file
an amended notice of removal by May 16, 2019, the Clerk of
Court shall remand this action to state court on May
17, 2019.
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Notes:
[1] Although Casa De Capri Enterprises
LLC, which is an Arizona limited liability company, is also
named as a defendant in this matter, its presence does not
destroy diversity jurisdiction. In Labertew v.
Langemeier, 846 F.3d 1028 (9th Cir. 2017), the Ninth
Circuit held that, in the unique context of a garnishment
action that's been removed from state court, complete
diversity must exist only between the plaintiffs and the
party served with the garnishment notice. Id. at
1032. In contrast, a “lack of diversity between”
the plaintiffs and the defendant against whom judgment was
entered in state court “is ...