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.”
Diversity 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).
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
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).
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
state in their notice of removal that “Defendant Dumont
Aviation Group, Inc., is a corporation incorporated in the
State of Delaware, with a registered office in New Castle
County, Delaware.” (Doc. 1 ¶ 6.) However,
Defendants did not affirmatively allege the location of its
principal place of business, which is mandatory to establish
citizenship for the purposes of establishing diversity.
Defendants allege that “[u]pon information and belief,
Plaintiff Trelevate, LLC, has three members: Ryan Knauss,
Kylee Knauss, and Paul Briski, all of whom reside in the
State of Arizona.” (Id. ¶ 8.) But
Defendants must affirmatively allege the citizenship
of the members of the LLC, not merely their state of
residence. Defendants may allege the LLC
members' citizenship on information and belief if the
information is not reasonably ascertainable. Carolina
Cas. Ins. Co. v. Team Equipment, Inc., 741 F.3d 1082,
1087 (9th Cir. 2014).
these pleading deficiencies, the Court will require the
removing Defendant to file an amended notice of removal.
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.
IT IS ORDERED that removing Defendant shall
file an amended notice of removal properly stating a
jurisdictional basis for this action no later than
September 30, 2019.
IS FURTHER ORDERED that if Defendant fails to file
an amended notice of removal by September 30,
2019, the Clerk of Court ...