United States District Court, D. Arizona
ORDER
Dominic W. Lanza United States 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
Garrison Property and Casualty Insurance Company
(“Garrison”) removed this action on June 10, 2019
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 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
Plaintiffs' citizenship.
The
Notice of Removal states that “Plaintiffs are citizens
of Arizona for federal diversity jurisdiction purposes
because the Complaint alleges that Plaintiffs are residents
of Arizona.” (Doc. 1 ¶ 4.) And indeed, the
Complaint alleges that “Plaintiffs were at all times
pertinent to this litigation residents of the City of Mesa,
County of Maricopa, State of Arizona.” (Doc. 1-3 ¶
1.) But the factual allegation that Plaintiffs are
residents of Arizona does not establish that 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 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 under the
correct legal standard. 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 may state the relevant
jurisdictional facts on information and belief if they are
not reasonably ascertainable. Carolina Cas. Ins. Co. v.
Team Equipment, Inc., 741 F.3d 1082, 1087 (9th Cir.
2014). 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 shall
file an amended notice of removal properly stating a
jurisdictional basis for this action no later than
June 27, 2019.
IT
IS FURTHER ORDERED that if Defendant fails to file
an amended notice of removal by June 27, 2019, the Clerk of
Court shall remand ...