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.”
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).
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. “Absent unusual circumstances, a party seeking to
invoke diversity jurisdiction should be able to allege
affirmatively the actual citizenship of the relevant
parties.” Kanter v. Warner-Lambert Co., 265
F.3d 853, 857 (9th Cir. 2001).
LLC is a citizen of every state of which its owners/members
are citizens.” Johnson v. Columbia Properties
Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006). Thus,
to properly establish diversity jurisdiction “with
respect to a limited liability company, the citizenship of
all of the members must be pled.” NewGen, LLC v.
Safe Cig, LLC, 840 F.3d 606, 611 (9th Cir. 2016).
corporation, whether incorporated in a state of the United
States or in a foreign country, is “deemed a citizen of
its place of incorporation and the location of its principal
place of business.” Nike, Inc. v. Comercial Iberica
de Exclusivas Deportivas, S.A., 20 F.3d 987, 990 (9th
Cir. 1994). “[D]iversity jurisdiction does not
encompass a foreign plaintiff suing foreign
defendants.” Id. at 991. “Where an alien
is made co-defendant with a citizen-defendant by an alien
plaintiff, . . . there is no jurisdiction over the
alien, ” and “[i]f the alien defendant is
indispensable, . . . there is no jurisdiction at
all.” Faysound Ltd. v. United Coconut Chemicals,
Inc., 878 F.2d 290, 294 (9th Cir. 1989).
individual natural persons, an allegation about an
individual's residence does not establish his or her
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, 265 F.3d at 858-59 (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
Thaae Resources Company Limited brings this action asserting
diversity as the sole basis of the Court's subject matter
jurisdiction. (Doc. 1 ¶ 10.) Plaintiff failed to allege
sufficient facts for the Court to determine the citizenship
of each party. The deficient allegations are as follows:
(1) Plaintiff alleges that it is incorporated in Bangkok,
Thailand (id. ¶ 1), but there is no allegation
regarding its principal place of business, which must be
alleged. Cf. Nike, 20 F.3d at 990 (“NIL,
however, is a corporation and we cannot disregard either its
site of incorporation, Bermuda, or its principal place of
business, which Nike alleges is Oregon, when testing for
(2) The citizenship of each member of Defendant A.G. Cooper,
LLC must be pled and has not been pled. NewGen, 840 F.3d at
(3) Defendant A.G. Cooper & Associates is alleged to be
“a Texas entity” (Doc. 1 ¶ 3), but there is
no allegation as to the type of entity it is and no facts
from which the Court can draw legal conclusions regarding
this entity's citizenship.
(4) The principal places of business for Defendants Mesa
Capital, Inc. and Sphinx Construction, LTD
(“Sphinx”) must be pled and have not been pled.
Nike, 20 F.3d at 990.
Plaintiff's place of incorporation (Thailand) establishes
that Plaintiff is an alien. Id. at 990-91. Defendant
Sphinx is alleged to be a Canadian corporation (Doc. 1 ¶
8), which means it is also an alien. Diversity jurisdiction
does not extend to an alien suing an alien, and the presence
of non-alien Defendants would not “salvage jurisdiction
because diversity must be complete.” Nike, 20
F.3d at 991; cf. Transure, Inc. v. Marsh & McLennan,
Inc., 766 F.2d 1297, 1298-99 (9th Cir. 1985) (pursuant
to 28 U.S.C. § 1332(a)(3), the presence of aliens on
both sides does not defeat diversity when there are citizens
of the United States on both sides who satisfy diversity
requirements). Thus, the Court lacks subject matter
jurisdiction over Sphinx, and if Sphinx is an indispensable
party, the Court lacks subject matter over this action in its
entirety. Faysound, 878 F.2d at 294.
the Court will dismiss the complaint for lack of subject
matter jurisdiction with leave to file-by July 23, 2019-an
amended complaint that (1) properly alleges facts from which
the Court can determine the ...