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
removed this action solely on the basis of diversity
jurisdiction. (Doc. 1.) 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.”).
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 “Plaintiff is an
individual residing in the state of Arizona.” (Doc. 1
at 1.) And indeed, the Complaint alleges that Plaintiff is a
resident of Arizona. (Doc. 1-3 ¶ 1.) But the factual
allegation that Plaintiff is a resident of Arizona
does not establish that he is a citizen 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 Plaintiff's state of residence fails to
establish his state of domicile for diversity purposes.
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
November 4, 2019.
IT
IS FURTHER ORDERED that if Defendant fails to file
an amended notice of removal by this deadline, the Clerk of
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