The opinion of the court was delivered by: Garland E. Burrell, Jr. Senior United States District Judge
ORDER CONCERNING FEDERAL DIVERSITY JURISDICTION
Plaintiffs move for confirmation of this Court's federal diversity jurisdiction. Defendants filed an opposition to the motion, in which they contend this Court lacks diversity jurisdiction because Defendant Jacob Murray was domiciled in the State of Nevada when Plaintiffs filed their Complaint.
Plaintiffs filed this personal injury lawsuit in federal court based on their allegation that diversity jurisdiction exists under 28 U.S.C. § 1332(a)(1), since Plaintiffs are citizens of the State of Nevada and Defendants are citizens of the State of California. (Compl. ¶¶ 2-6.) Defendants answered Plaintiffs' Complaint, admitting that diversity jurisdiction exists, including the allegation that Defendant Jacob Murray is "a resident and citizen of the State of California." (Answer ¶¶ 1, 5; Compl. ¶¶ 1, 5.)
This action was subsequently stayed pursuant to the parties' stipulation, which includes the parties' following agreement:
[a] traffic accident . . . is the subject of this action . . . ; . .
Defendant, Jacob Allen Murray , is and was a Deputy Sheriff for the County of Sierra, State of California . . . ; . . . Plaintiffs' counsel, in an attempt to protect the case if a diversity challenge were made, filed . . . in the Superior Court of California . . . [a] [STATE ACTION]; . . . . . . counsel for defendants have recently provided counsel for plaintiffs with a 'Declaration of Jacob Allen Murray' which states, in relevant part, MURRAY was, at the time of the accident and the filing of this action, a resident of the State of Nevada; . . . counsel for plaintiffs would have, in this action, sought an opportunity to conduct discovery regarding MURRAY'S domicile in Nevada, including . . . the reasons for MURRAY'S move to and his intent to remain in Nevada; and . . . counsel agree the aforementioned discovery can be conducted in the STATE ACTION [and] are willing . . . to avoid the necessity of motion practice over the diversity issue in this [federal] court until such time as discovery is conducted. (ECF No. 12, 1:20-2:11.)
After the parties conducted discovery in the STATE ACTION concerning the federal diversity jurisdiction issue, they sought and received a briefing schedule in this federal action, "to allow Plaintiffs to file a motion for determination of Defendant Murray's domicile." (ECF No. 16, 3:11.) Plaintiffs filed the pending Motion to Confirm Diversity Jurisdiction ("Motion"); Defendants filed an opposition brief ("Opposition"), in which they challenged the existence of diversity jurisdiction.
Although Defendants did not themselves file a motion challenging diversity jurisdiction, Defendants' Opposition clearly attacks the existence of diversity jurisdiction. Defendants' Opposition is "properly before the court as a [Federal] Rule [of Civil Procedure] 12(h)(3) suggestion of lack of subject matter jurisdiction." Augustine v. United States, 704 F.2d 1074, 1075 n.3 (9th Cir. 1983) (citations omitted); see also Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 955 n.2 (9th Cir. 2004)(same).*fn1
Challenges to a court's subject matter jurisdiction "can be either facial or factual. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). Facial challenges attack the pleadings as insufficient to invoke federal jurisdiction; factual challenges contest the truth of the jurisdictional pleadings. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a factual attack on jurisdiction, a court "may look beyond the complaint" to evaluate the jurisdictional facts without converting the motion into a motion for summary judgment. White, 227 F.3d at 1242; Trentacosta v. Frontier Pac. Aircraft Indus., 813 F.2d 1553, 1558 (9th Cir. 1987) (collecting cases).
Here, Defendants make a factual attack on jurisdiction. The parties have presented evidence in support of their respective positions on jurisdiction. In light of the nature of the factual dispute, the matter was submitted without an evidentiary or other hearing. "Because no evidentiary hearing was held, we accept as true the factual allegations in the complaint." McLachlan v. Bell, 261 F.3d 908, 909 (9th Cir. 2001).
III. EVIDENTIARY OBJECTIONS
Defendants filed evidentiary objections to nine statements or documents attached as Exhibits 1, 4, and 5 to Plaintiffs' Motion. (ECF No. 25.) Exhibit 1 is comprised of excerpts from Murray's Deposition Transcript. Defendants object to the following testimony from Murray's deposition: (1) "During his tenure in Nevada, Murray maintained a mailing address in Truckee, California."; (2) "Murray maintained membership at Oddfellows Club in Truckee, California."; (3) "Murray maintained membership in California, Operating Engineers, Sierra County branch."; (4) "Murray maintained membership in Sierra County Deputy Sheriff's ...