The opinion of the court was delivered by: Present: The Honorable Gary Allen Feess
Renee Fisher None N/A Deputy Clerk Court Reporter / Recorder Tape No. Attorneys Present for Plaintiffs: Attorneys Present for Defendants: None None
Proceedings: (In Chambers)
ORDER TO SHOW CAUSE RE: SUBJECT MATTER JURISDICTION
INTRODUCTION AND BACKGROUND
On May 5, 2011, Plaintiff Flor Amini filed a First Amended Complaint ("FAC") in this putative class action lawsuit against Defendants Group 1 Automotive, Inc. ("Group 1"), Performance Nissan ("Performance Nissan"), and ExpressLink, Inc. a.k.a. InsureExpress ("ExpressLink"), alleging violations of the Telephone Consumer Protection Act, 47 U.S.C. § seq.. Plaintiff asserts that the Court has diversity jurisdiction under the Class Action Fairness Act of 2005 ("CAFA"), 28 U.S.C. § 1332(d). (Docket No. 12, FAC ¶¶ 1--2.) The action was transferred to this Court from the United States District Court for the Southern District of California on July 28, 2011. (Docket No. 27.) On November 21, 2011, this Court held a scheduling conference pursuant to Federal Rule of Civil Procedure ("F.R.C.P.") 26(f).
For the reasons discussed below, the Court cannot determine whether it must decline to exercise subject matter jurisdiction over this action pursuant to CAFA's "local controversy exception." Plaintiff is hereby ORDERED TO SHOW CAUSE, no later than 5:00p.m. on Monday, December 5, 2011, why the Court should not dismiss this action. Failure to respond by this time will be deemed consent to dismissal of this action.
Federal courts are courts of limited jurisdiction, and the burden of establishing jurisdiction rests upon the party asserting it. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Under F.R.C.P. 12(h)(3), "[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). "[A] court may raise the question of subject matter jurisdiction, sua sponte, at any time during the pendency of the action . . . ." Snell v. Cleveland, Inc., 316 F.3d 822, 826 (9th Cir. 2002); see United Investors Life Ins. Co. v. Waddell & Reed, Inc., 360 F.3d 960, 966 (9th Cir. 2004) (district court had a duty to establish subject matter jurisdiction over the removed action sua, regardless of whether the parties raised the issue).
Under CAFA, federal courts have diversity jurisdiction over class actions in which the amount in controversy exceeds $5,000,000 and diversity of citizenship exists between at least one plaintiff and one defendant. 28 U.S.C. § 1332(d)(2). However, under CAFA's "local controversy ...