United States District Court, N.D. California
ORDER GRANTING MOTION TO DISMISS FOR LACK OF SUBJECT
MATTER JURISDICTION Re: Dkt. Nos. 82
JACQUELINE SCOTT CORLEY United States Magistrate Judge
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”).
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.
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.)
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.
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.
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
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.
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.
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.
Lithia is a California citizen. 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 ...