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Gerald Gilberti, et al. v. Wells Fargo & Company

UNITED STATES DISTRICT COURT PRIORITY SEND CENTRAL DISTRICT OF CALIFORNIA


November 17, 2011

GERALD GILBERTI, ET AL.
v.
WELLS FARGO & COMPANY, ET AL.

The opinion of the court was delivered by: Honorable John F. Walter, United States District Judge

JS-6

CIVIL MINUTES -- GENERAL

Shannon Reilly Courtroom Deputy

ATTORNEYS PRESENT FOR PLAINTIFFS: None

None Present

Court Reporter

ATTORNEYS PRESENT FOR DEFENDANTS: None

PROCEEDINGS (IN CHAMBERS): ORDER DISMISSING ACTION FOR LACK OF SUBJECT MATTER JURISDICTION

On October 3, 2011, Plaintiff Gerald Gilberti ("Plaintiff") filed a Complaint in this Court against Defendants Wells Fargo & Company and U.S. Bank National Association, as trustee of Wachovia Capital Trust X (collectively, "Defendants"), alleging that the Court had subject matter jurisdiction over the action pursuant to 28 U.S.C. § 1332.

Plaintiff has not adequately alleged the facts essential for the subject matter jurisdiction of*fn1 Tosco Corp. v. Communities for a Better Environment, 236 F.3d 495, 499 (9th Cir. 2001) (quoting Smith v. McCullough, 270 U.S. 456, 459 (1926)) ("'A plaintiff suing in a federal court must show in his pleading, affirmatively and distinctly, the existence of whatever is essential to federal jurisdiction . . . .'"). To allege jurisdiction under CAFA, a federal district court has subject matter jurisdiction over a class action in which: (1) there are 100 or more proposed class members; (2) at least some of the members of the proposed class have a different citizenship from the defendant; and (3) the aggregated claims of the proposed class members exceed the sum or value of $5,000,000.*fn2 See 28 U.S.C. § 1332(d).

In his Complaint, Plaintiff alleges that he is a resident of Arizona. Complaint, ¶ 3. However, "the diversity jurisdiction statute, 28 U.S.C. § 1332, speaks of citizenship, not of residency." Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001). To be a citizen of a state, a natural person must be a citizen of the United States and be domiciled in a particular state. Id. Persons are domiciled in the places they reside with the intent to remain or to which they intend to return.

. "A person residing in a given state is not necessarily domiciled there, and thus is not necessarily a citizen of that state." Id. Therefore, Plaintiff's allegations are insufficient to establish their citizenship.

In addition, Plaintiff's jurisdictional allegations in the Complaint regarding Defendants and the amount in controversy are based on information and belief. This is insufficient. Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001) ("Absent unusual circumstances, a party seeking to invoke diversity jurisdiction should be able to allege affirmatively the actual citizenship of the relevant parties."). As the Supreme Court long ago held, "a plaintiff, suing in federal court, must show in his pleading, affirmatively and distinctly, the existence of whatever is essential to federal jurisdiction." Smith, 270 U.S. at 459 (1926); accord, Rilling v. Burlington Northern Railroad , 909 F.2d 399, 400 (9th Cir. 1990). A complaint alleging diversity of citizenship or the amount in controversy upon "information and belief" is insufficient to confer jurisdiction. America's Best ., 980 F.2d at 1074 (holding that allegations based on "to the best of my knowledge and belief" are insufficient); see, also, Bradford v. Mitchell Bros. Truck Lines, 217 F.Supp. 525, 527 (N.D. Cal. 1963).

Finally, Plaintiff has failed to allege that there are at least 100 class members of the proposed class as required for jurisdiction under CAFA. 28 U.S.C. § 1332(d).

Federal Rule of Civil Procedure 12(h)(3) specifically states that "[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." Fed. R. Civ. P. 12(h)(3). Pursuant to Rule 12(h)(3), "a court may raise the question of subject matter jurisdiction, , at any time during the pendency of the action, even on appeal." Snell v. Cleveland, , 316 F.3d 822, 826 (9th Cir. 2002); see also Emerich v. Touche Ross & Co., 846 F.2d 1190, 1194 n. 2 (9th Cir. 1988) (noting that "[i]t is elementary that the subject matter jurisdiction of the district court is not a waivable matter and may be raised at anytime by one of the parties, by motion or in the responsive pleadings, or sua sponte by the trial or reviewing court").

Accordingly, the Court hereby DISMISSES this action for lack of subject matter jurisdiction.

IT IS SO ORDERED.


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