United States District Court, D. Arizona
DOMINIC W. LANZA UNITED STATES 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.”
Heather Fisher removed this action on June 21, 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 the parties'
Notice of Removal states that Plaintiff Julie Murphy is a
“resident” of Arizona, that Defendant Heather
Fisher is a “resident” of California, and that
“[d]iversity of citizenship is met as no Defendant is a
resident of Arizona - and the parties are citizens of
different states.” (Doc. 1 ¶¶ 3-5.) And
indeed, the Complaint alleges that Plaintiff “resides
in” Arizona and that Defendant “is a resident
of” California. (Doc. 1-2 ¶¶ 1-2.) But the
factual allegation that a party is a resident of a
certain state does not establish state 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 a party's state of residence fails to establish
her state of domicile for diversity purposes.
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 Defendant to
file an amended notice of removal that affirmatively states
her own citizenship and 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 as to Plaintiff 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
IT IS ORDERED that removing Defendant shall
file an amended notice of removal properly stating a
jurisdictional basis for this action no later than
July 5, 2019.
IS FURTHER ORDERED that if Defendant fails to file
an amended notice of removal by July 5, 2019, the Clerk of
Court shall remand ...