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CHINA BASIN PROPERTIES, LTD. v. ONE PASS

February 8, 1993

CHINA BASIN PROPERTIES, LTD., a California Partnership, Plaintiff,
v.
ONE PASS, INC., a Delaware Corporation and BANTA CORPORATION, a Wisconsin Corporation, Defendant



The opinion of the court was delivered by: STANLEY A. WEIGEL

 I. Background

 Plaintiff is a California Partnership which owns and operates China Basin Landing, a San Francisco commercial real estate development. Defendant One Pass is a video recording and post-production business incorporated in Delaware. One Pass is a wholly owned subsidiary of Defendant Banta, a Wisconsin corporation with its principal place of business in Wisconsin.

 Prior to July, 1991, One Pass conducted its business from certain premises at China Basin Landing which it leased from Plaintiff. On July 12, 1991, said premises were substantially destroyed by fire. Immediately after the fire, One Pass moved its business to another San Francisco location and informed Plaintiff of its intent to terminate the lease. By September, One Pass had decided to wind down business operations. By mid-November, One Pass had sold all of the video equipment that survived the fire and had terminated all but two of its employees.

 Alleging diversity jurisdiction, Plaintiff brought this action for alleged breach of lease contract against One Pass and Banta on November 21, 1991. Defendants move to dismiss pursuant to Fed. A. Civ. P. 12(b)(1). Defendants contend that the Court lacks jurisdiction because there is no diversity of citizenship between Plaintiff and Defendants.

 II. Discussion

 A. Diversity Jurisdiction

 For the exercise of subject matter jurisdiction to be proper in a diversity case, no plaintiff can be a citizen of the same state as any defendant. 28 U.S.C. § 1332; Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 373, 57 L. Ed. 2d 274, 98 S. Ct. 2396 (1978). Diversity is determined as of the time the complaint was filed, Mann v. City of Tuscon, 782 F.2d 790, 794 (9th Cir. 1986) and the burden of proving jurisdictional facts is on the party asserting jurisdiction. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 182, 80 L. Ed. 1135, 56 S. Ct. 780 (1936); Fenton v. Freedman, 748 F.2d 1358, 1359 n.1 (9th Cir. 1984). The diversity statute is construed strictly and doubts are resolved against finding jurisdiction. Kantor v. Wellesley Galleries, Ltd., 704 F.2d 1088, 1092 (9th Cir. 1983).

 For diversity purposes, the citizenship of Plaintiff, a partnership, is determined by the citizenship of the individual partners. See City of Clinton, Illinois v. Moffitt, 812 F.2d 341, 342 (7th Cir. 1987). Each partner of Plaintiff partnership is a citizen of California. Thus, Plaintiff is a California citizen for diversity purposes.

  A corporation is a citizen of the state in which it is incorporated and of the state in which it has its principal place of business. 28 U.S.C. § 1332(c)(1); Industrial Tectonics Inc. v. Aero Alloy, 912 F.2d 1090, 1092 (9th Cir. 1990). As a Wisconsin corporation with its principal place of business in Wisconsin, Banta is a Wisconsin citizen for diversity purposes.

 B. Citizenship of Inactive Corporations

 The dispute in this case focuses on the citizenship of One Pass. Plaintiff argues that because One Pass was an inactive corporation on the date the complaint was filed, it had no principal place of business and was a citizen only of Delaware, its place of incorporation. See also Gavin v. Read, 356 F. Supp. 483, 486 (E.D. Pa. 1973). Plaintiff further contends that because Plaintiff is a citizen of California and One Pass is a citizen of Delaware, complete diversity exists.

 Defendants assert, however, that when a corporation is winding down or has ceased its business activity, it is a citizen both of its state of incorporation and of its last principal place of business. See also Comtec, Inc. v. National Technical Schools, 711 F. Supp. 522, 525 (D. Ariz. 1989). Defendants contend that because One Pass' last principal place of business was California, One Pass was a citizen both of Delaware and of California on the date the complaint was filed . Because Plaintiff is also a California citizen, argue Defendants, the parties are not of diverse citizenship and the Court has no jurisdiction.

 While the Ninth Circuit has never ruled on which view of the citizenship of a defunct corporation is proper, Defendants' reading comports more closely with the plain meaning of 28 U.S.C. § 1332 (c), its legislative history and congressional intent. See China Basin Properties, Ltd v. Allendale Mutual Insurance Co., 1992 U.S. Dist. LEXIS 13489 (N.D. Cal. Aug. 17, 1992) (concluding ...


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