United States District Court, C.D. California
Mynor F. Portillo
J.D. Mellberg Financial of Texas, L.L.C., et al.
PRESENT: HONORABLE PERCY ANDERSON, UNITED STATES DISTRICT
CIVIL MINUTES - GENERAL
IN CHAMBERS - ORDER TO SHOW CAUSE
the Court is the First Amended Complaint (“FAC”)
filed by plaintiff Mynor F. Portillo
(“Plaintiff”) against defendant Joshua D.
Mellberg, LLC (“Defendant”) and multiple Doe
defendants. (Docket No. 19.)
Rule of Civil Procedure 8(a) requires that “[a]
pleading that states a claim for relief must contain . . . a
short and plain statement of the grounds for the court's
jurisdiction . . . .” Fed.R.Civ.P. 8(a)(1). This
District's Local Rules further provide that “[t]he
statutory or other basis for the exercise of jurisdiction by
this Court shall be plainly stated in . . . any document
invoking this Court's jurisdiction.” L.R. 8-1.
Federal courts have subject matter jurisdiction only over
matters authorized by the Constitution and Congress.
Bender v. Williamsport Area Sch. Dist., 475 U.S.
534, 541, 106 S.Ct. 1326, 1331, 89 L.Ed.2d 501 (1986). In
seeking to invoke this Court's jurisdiction, Plaintiff
bears the burden of proving that jurisdiction exists. See
Scott v. Breeland, 792 F.2d 925, 927 (9th Cir. 1986).
FAC alleges that the Court possesses diversity jurisdiction
over this action pursuant to the Class Action Fairness Act
(“CAFA”), 28 U.S.C. § 1332(d). (See
FAC ¶ 4.) CAFA provides that district courts have
original jurisdiction over any class action in which (1) the
amount in controversy exceeds five million dollars, (2) any
plaintiff class member is a citizen of a state different from
any defendant, (3) the primary defendants are not states,
state officials, or other government entities against whom
the district court may be foreclosed from ordering relief,
and (4) the number of plaintiffs in the class is at least
100. 28 U.S.C. § 1332(d)(2), (d)(5).
establish citizenship for diversity purposes, a natural
person must be a citizen of the United States and be
domiciled in a particular state. Kantor v. Wellesley
Galleries, Ltd., 704 F.2d 1088, 1090 (9th Cir. 1983).
Persons are domiciled in the places they reside with the
intent to remain or to which they intend to return. See
Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th
Cir. 2001). “A person residing in a given state is not
necessarily domiciled there, and thus is not necessarily a
citizen of that state.” Id. For the purposes
of diversity jurisdiction, a corporation is a citizen of both
its state of incorporation and the state in which it has its
principal place of business. 28 U.S.C. § 1332(c)(1);
see also New Alaska Dev. Corp. v. Guetschow, 869
F.2d 1298, 1300-01 (9th Cir. 1989). In a CAFA action,
“an unincorporated association shall be deemed to be a
citizen of the State where it has its principal place of
business and the State under whose laws it is
organized.” 28 U.S.C. § 1332(d)(10).
Plaintiff alleges that he “is a resident of this
District” and that he was “located in
California” at times relevant to this action. (FAC
¶¶ 1, 7.) The Complaint does not identify
Plaintiffs' state of domicile or citizenship. Because an
individual is not necessarily a citizen of his state of
residence, the Complaint fails to adequately allege
Plaintiff's citizenship. Moreover, Plaintiff sought to
represent a class of certain “persons located
in California.” (Id. ¶ 10 (emphasis
added).)/ Plaintiff's offered class
definition does not provide any information about the
putative class members' citizenship and therefore does
not assist the Court in determining whether CAFA's
minimal diversity requirement is satisfied.
allegations also fail to establish Defendant's
citizenship. Plaintiff alleges only that Defendant “is
an Arizona limited liability corporation that does business
in California.” (FAC ¶ 2.) Elsewhere, Plaintiff
alleges that Defendant “is licensed to do business in
the State of California.” (Id. ¶ 5.) It
is not clear from the FAC if Plaintiff intended to allege
that Defendant is a corporation or a limited liability
company (“LLC”). However, under CAFA, whether
incorporated or not, Defendant is deemed a citizen of both
the state of its principal place of business and the state
under whose laws it is organized for purposes of diversity
jurisdiction. See 28 U.S.C. § 1332(c)(1),
(d)(10). Plaintiff appears to allege only the latter. For
this additional reason, the Court is unable to ascertain
whether it has subject matter jurisdiction over this action.
these deficiencies a district court may, and should, grant
leave to amend when it appears that subject matter
jurisdiction may exist, even though the complaint
inadequately alleges jurisdiction. See 28 U.S.C.
§ 1653; Trentacosta v. Frontier Pac. Aircraft
Indus., Inc., 813 F.2d 1553, 1555 (9th Cir. 1987).
Therefore, the Court grants Plaintiff leave to amend the FAC
to attempt to establish federal subject matter jurisdiction.
Plaintiff's Second Amended Complaint, if any, is to be
filed by November 6, 2017. The failure to file a Second
Amended Complaint by that date, or to adequately allege the
Court's jurisdiction, may result in the dismissal of this
action without prejudice.
/ In a separate Minute Order,
the Court is striking from the FAC Plaintiff's class
allegations due to Plaintiff's failure to timely file a
motion for class certification. Striking the class
allegations does not deprive this Court of subject matter
jurisdiction if the Court had jurisdiction under CAFA when
the case was filed. See United Steel, Paper &
Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv.
Workers Int'l Union, AFL-CIO, CLC v. Shell Oil Co.,
602 F.3d 1087, 1091-92 (9th Cir. 2010) (stating that
“Congress intended that the usual and long-standing