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Moss v. Infinity Insurance Co.

United States District Court, N.D. California

May 30, 2017



          JACQUELINE SCOTT CORLEY United States Magistrate Judge

         This matter involves state-law insurance claims arising from an automobile collision. Plaintiff Arryanne Moss (“Plaintiff”) brings this action against Defendants Infinity Insurance Company (“Infinity”), Automobile Warranty Services, Inc. (“AWS”), Lithia Chrysler Jeep Dodge of Santa Rosa (“Lithia”), Insurance Answer Center, Inc. (“IAC”), and Charlotte Toth (“Toth”).

         Now pending before the Court is IAC's motion to dismiss pursuant to Rule 12(b)(1). (Dkt. 82.) Infinity, Lithia, and Toth have all joined IAC's motion. (Dkt. Nos. 85, 86.) Defendants contend that the Court lacks diversity jurisdiction because at the time the lawsuit was filed Plaintiff was domiciled in California. While IAC was not a party to the original complaint, Lithia was named as a defendant in the original suit and is a citizen of California. (Dkt. Nos. 1, 68.) Having carefully reviewed the supplemental briefs and evidence regarding Plaintiff's domicile, and having held a hearing on May 25, 2017, the Court finds that as of the filing of the complaint in this action-July 25, 2015-Plaintiff was domiciled in California. The Court lacks subject matter jurisdiction and therefore GRANTS IAC's motion to dismiss.


         The Court previously reviewed multiple iterations of Plaintiff's complaint pursuant to 28 U.S.C. § 1915(e)(2). First, the Court dismissed Plaintiff's initial complaint for failure to allege subject matter jurisdiction because Plaintiff alleged she was a citizen of California and failed to allege the citizenship of any of the defendants, let alone that they were diverse from Plaintiff. (Dkt. No. 7 at 5:8-11.) Next, the Court dismissed Plaintiff's First Amended Complaint (“FAC”), again for failure to allege subject matter jurisdiction, due to Plaintiff's flawed citizenship allegations for both Plaintiff and Defendants. The FAC alleged Plaintiff resided in Sonoma County, California, but elsewhere Plaintiff alleged that she is both a citizen and resident of the State of Washington. (Dtk. No. 9 ¶¶ 1, 7; Dtk. No. ¶ 9-1 at 2.) Toth was alleged to be a resident of Oregon and California. (Dtk. No. 9 ¶ 5.) Plaintiff further failed to allege enough facts from which the Court could assess the citizenship of the four entity defendants. (Dtk. 12 at 9:22-24.) Accordingly, the Court dismissed the FAC for failure to establish a basis for subject matter jurisdiction. (Id. at 10:2-3.)

         The Court subsequently dismissed the Second Amended Complaint (“SAC”) for Plaintiff's failure to adequately allege her breach of contract and implied covenant of good faith and fair dealing claims. (Dtk. No. 14 at 12:3-6.) The Court did find that Plaintiff sufficiently alleged subject matter jurisdiction for the purposes of Section 1915 review as Plaintiff represented she is a resident and citizen of Washington State although she resided in California at the time of the events at issue, and each defendant was alleged to be a citizen of a state different from Plaintiff's alleged Washington State citizenship. (Id. at 11:25-27.) The Court stated that its “determination [was] without prejudice to Defendants raising lack of subject matter jurisdiction after service.” (Id. at 5:6-8.) In her Third Amended Complaint (“TAC”) Plaintiff cured the defects to her contract and good faith and fair dealing claims; therefore the Court concluded that the TAC was sufficiently pled to proceed to service. (Dkt. No. 17.)

         After the defendants were served, IAC moved to dismiss Plaintiff's complaint due to a lack of complete diversity of citizenship. IAC contended that Plaintiff is a citizen of California as are defendants IAC, Lithia, and Toth. Plaintiff opposed IAC's motion to dismiss and cited the Court's Section 1915 Order as authority to demonstrate that she had sufficiently pled diversity of citizenship. (Dkt. No. 87 at 3.) As the Court had not finally decided its subject matter jurisdiction on its ex parte Section 1915 review of the various iterations of Plaintiff's complaint, and indeed, had specifically stated that the defendants could challenge jurisdiction, the Court directed Plaintiff to file a supplemental opposition to IAC's motion to dismiss that substantively addressed IAC's arguments. (Dkt. No. 96 at 3:18-20.) Following review of the pleadings, the Court ordered limited jurisdictional discovery on facts relevant to Plaintiff's domicile and allowed IAC to take Plaintiff's deposition. (Dkt. No. 103 at 7:20-28.) By stipulation of the parties, the Court ordered Plaintiff to file her supplemental brief by May 8, 2017 and Defendants' to file their response by May 18, 2017. (Dkt. No. 114 at 1.) The Court heard oral argument on May 25, 2017.


         A Rule 12(b)(1) jurisdictional attack may be facial or factual. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000) (citation omitted). “In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In resolving a factual attack on jurisdiction, the court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment. Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003) (citing White, 227 F.3d at 1242). “Once the moving party has converted the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction.” Savage, 343 F.3d at 1039 n.2. The court need not presume the truthfulness of the plaintiff's allegations. White, 227 F.3d at 1242.

         Jurisdiction founded on diversity “requires that the parties be in complete diversity and the amount in controversy exceed $75, 000.” Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003). Complete diversity means that each defendant must be a citizen of a different state from each plaintiff. Diaz v. Davis (In re Digimarc Corp. Derivative Litig.), 549 F.3d 1223, 1234 (9th Cir. 2008); 28 U.S.C. § 1331.

         For the purposes of diversity jurisdiction, a person is a citizen of his or her state of domicile, which is determined at the time the lawsuit is filed. Lew v. Moss, 797 F.2d 747, 750 (1986) (citation omitted). “[A] person is ‘domiciled' in a location where he or she has established a fixed habitation or abode in a particular place, and [intends] to remain there permanently or indefinitely.” Id. at 749-50 (citations omitted). The determination of an individual's domicile involves a number of factors including “current residence, voting registration and voting practices, location of personal and real property, location of brokerage and bank accounts, location of spouse and family ... driver's license and automobile registration, and payment of taxes.” Id. at 749.

         A person's old domicile is not lost until a new one is acquired. Id. Indeed, there is a presumption in favor of an established domicile as opposed to a newly acquired one. Id. A change in domicile requires: (a) physical presence at the new location; and (b) an intention to remain there indefinitely. Id. A person residing in a given state is not necessarily domiciled there and thus is not necessarily a citizen of that state. Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001). Domicile is evaluated in terms of “objective facts, ” and “statements of intent are entitled to little weight when in conflict with facts.” Lew, 797 F.2d at 750. Plaintiff, as the party asserting diversity jurisdiction, bears the burden of proof. Id. at 751. She also bears the burden of production given that it is her domicile that is at issue. Id.


         Defendant Lithia is a California citizen.[1] Therefore, Plaintiff must prove she was domiciled in Washington on or before July 27, 2015 - the day she filed her complaint - for her case to survive. See Lew, 797 F.2d at 750. Plaintiff contends she moved to Washington in May 2015 to move in with her boyfriend with whom she had maintained a long distance relationship for the previous year. Plaintiff has proven that she lived in Washington as of July 27, 2015, but she has failed ...

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