United States District Court, D. Arizona
DOMINIC W. LANZA UNITED SLATES DISTRICT JUDGE
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 Costco Wholesale Corporation (“Costco”)
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 Plaintiff's citizenship.
Notice of Removal states that “Upon information and
belief, Plaintiff, at all material times in this lawsuit,
resided in Maricopa County, State of Arizona.” (Doc. 1
¶ 5.) And indeed, the Complaint alleges that
“Plaintiff is and was, at the time material hereto, a
resident of Maricopa County, Arizona.” (Doc. 1-3 ¶
1.) But the factual allegation that Plaintiff is and was a
resident of Arizona does not establish Arizona
citizenship 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 Plaintiff's state of
residence fails to establish her state of domicile for
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
this pleading deficiency, the Court will require the removing
Defendant to file an amended notice of removal that
affirmatively states Plaintiff's 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
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.
IS FURTHER ORDERED that if Defendant fails to file
an amended notice of removal by June 27, 2019, the Clerk of
Court shall remand ...