United States District Court, N.D. California
P. STEPHEN LAMONT, Plaintiff,
JOHN PILKINGTON, et al., Defendants.
ORDER TO SHOW CAUSE RE: SUBJECT MATTER
JACQUELINE SCOTT CORLEY UNITED STATES MAGISTRATE JUDGE
Stephen Lamont, proceeding pro se, brings this action against
Defendants John Pilkington and Mary Ellen Pilkington. The
Court previously granted Plaintiff's application to
proceed in forma pauperis. (Dkt. No. 4.) The Court must now
review the allegations under 28 U.S.C. § 1915. Because
the complaint fails to establish a basis for subject matter
jurisdiction, the Court orders Plaintiff to show cause as to
why this action should not be dismissed for lack of
28 U.S.C. § 1915, the Court has a continuing duty to
dismiss any case in which a party is proceeding in forma
pauperis if the Court determines that the action is (1)
frivolous or malicious; (2) fails to state a claim on which
relief may be granted; or (3) seeks monetary relief against a
defendant who is immune from such relief. A complaint is
frivolous for Section 1915 purposes where there is no subject
matter jurisdiction. See Castillo v. Marshall, 207
F.3d 15, 15 (9th Cir. 1997) (citation omitted); see also
Pratt v. Sumner, 807 F.2d 817, 819 (9th Cir. 1987)
(recognizing the general proposition that a complaint should
be dismissed as frivolous on Section 1915 review where
subject matter jurisdiction is lacking). And in any event,
the Court has an independent obligation to address whether it
has subject matter jurisdiction over the case. See Valdez
v Allstate Ins. Co., 372 F.3d 1115, 1116 (9th Cir. 2004)
(noting that district courts are “obligated to consider
sua sponte whether [they] have subject matter
courts are courts of limited jurisdiction. They possess only
that power authorized by Constitution and statute.”
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994). Further, as courts of limited jurisdiction,
“federal courts have an independent obligation to
ensure that they do not exceed the scope of their
jurisdiction.” Henderson ex rel. Henderson v.
Shinseki, 562 U.S. 428, 434 (2011). There are two bases
for federal subject matter jurisdiction: (1) federal question
jurisdiction under 28 U.S.C. § 1331 and (2) diversity
jurisdiction under 28 U.S.C. § 1332. The complaint here
invokes diversity jurisdiction.
properly allege diversity jurisdiction, a plaintiff must
claim damages in excess of $75, 000. 28 U.S.C. §
1332(a). In addition, “diversity jurisdiction requires
complete diversity between the parties-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. Plaintiff seeks damages in excess of a hundred
million dollars which satisfies the amount in controversy
requirement. See Crum v. Circus Circus Enters., 231
F.3d 1129, 1131 (9th Cir. 2000) (“Generally, the amount
in controversy is determined from the face of the
pleadings.”). However, given the allegations of the
Complaint, the Court has concerns regarding the diversity of
citizenship of the parties.
alleges that he is a resident of the State of California and
that the Defendants are residents of New York. (Complaint
¶¶ 3, 5-7.) Plaintiff has not provided a physical
address for himself, and instead, the pleadings list his
address as “undomiciled, San Francisco,
California.” (Dkt. Nos. 1, 2, 6.) The allegations of
the Complaint are that Plaintiff “operates on a world
stage from the Seattle to San Diego technology corridors to
Bangalore, India and many places in between residing at
[undomiciled], San Francisco, California.” (Complaint
¶ 5.) However, the claim in this action arises out of
acts of negligence with respect to Defendants'
maintenance of a property Plaintiff leased in Rye, New York
commencing March 1, 2013. (Id. ¶¶ 8-31.)
The Complaint alleges specific acts of negligence between
2014 and 2015, but also states that these negligent acts
continue “to even date below.” (Id.
¶¶ 12, 17, 23.) These allegations suggest that
Plaintiff is still living in the residence in Rye, New York,
rather than San Francisco.
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). “[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); see also 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.
Kanter, 265 F.3d at 857. 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 establishing his domicile.
Id. . at 751.
Plaintiff is ORDERED TO SHOW CAUSE as to this Court's
subject matter jurisdiction, and particularly, as to his
domicile for purposes of diversity jurisdiction. Plaintiffs
response to this Order to Show Cause is due December 4, 2017.
Failure to respond to the Order to Show Cause may result in
the dismissal of this action for failure to prosecute.
See Fed. R. Civ. Pro. 41(b).
Plaintiff is proceeding pro se, the Court directs his
attention to the Handbook for Pro Se Litigants, which is
available along with further information for the parties on
the Court's website located at
may also contact the Legal Help Center, 450 Golden Gate
Avenue, 15th Floor, Room 2796, Telephone No. (415)-782-8982,
for free assistance regarding his claims.