UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
December 6, 2011
BRIAN COTTER, ET AL.
The opinion of the court was delivered by: Honorable John F. Walter, United States District Judge
CIVIL MINUTES -- GENERAL
ATTORNEYS PRESENT FOR PLAINTIFFS: None
ATTORNEYS PRESENT FOR DEFENDANTS: None
PROCEEDINGS (IN CHAMBERS): ORDER DISMISSING ACTION FOR LACK OF SUBJECT MATTER JURISDICTION
On November 22, 2011, Plaintiffs Brian Cotter and PCVisor LLC (collectively, "Plaintiffs") filed a Complaint in this Court against Defendant Quatrro Inc. ("Defendant"), alleging that the Court had subject matter jurisdiction over the action pursuant to 28 U.S.C. § 1332.
Plaintiffs have not adequately alleged the facts essential for the subject matter jurisdiction of
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 . . . .'"). Diversity jurisdiction founded under 28 U.S.C. § 1332(a) requires that
(1) all plaintiffs be of different citizenship than all defendants, and (2) the amount in controversy exceed $75,000. See 28 U.S.C. § 1332.
In their Complaint, Plaintiffs allege that Brian Cotter is a resident of California. 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, Plaintiffs' allegation is insufficient to establish Cotter's citizenship.
In addition, a limited liability company is a citizen of every state of which its members are
See, e.g., Johnson v. Columbia Properties Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006) ("[L]ike a partnership, an LLC is a citizen of every state of which its owners/members are citizens."). However, Plaintiffs have failed to allege the citizenship of any of the members of PCVisor LLC.
Moreover, Plaintiffs allege Defendant's citizenship "[u]pon information and belief." However, jurisdictional allegations based on information and belief are insufficient to confer jurisdiction.
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."); America's Best Inns, Inc., 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). 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);
Rilling v. Burlington Northern Railroad Co., 909 F.2d 399, 400 (9th Cir. 1990).
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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