United States District Court, N.D. California
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS RE:
DKT. NO. 16
HAYWOOD S. GILLIAM, JR. UNITED STATES DISTRICT JUDGE
before the Court is a motion to dismiss by DBI Coinvestor
Fund VIII, LLC; Dreambuilder Investments, LLC; Peter Andrews;
and Gregory Palmer (collectively referred to as
“Defendants”). Dkt. No. 16 (“Mot.”).
For the reasons set forth below, the Court GRANTS
Land Home Financial Services, Inc. filed the Complaint on
January 19, 2018. See Dkt. No. 1
(“Compl.”). It asserts that this Court has
subject matter jurisdiction based on diversity of
citizenship. Id. ¶ 9. As relevant here,
Plaintiff alleges that it is a California corporation with
its principal place of business in California, and that
former Defendant Robert Knohl (“Knohl”)
“was an individual residing in, and doing business
throughout the State of California.” Id.
¶¶ 1, 7. Defendant contends that the Court lacks
subject matter jurisdiction and should dismiss the action.
See Mot. at 3. The Court agrees.
defendant may move for dismissal on the ground that the court
lacks subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). It
is the plaintiff's burden to establish subject matter
jurisdiction. See Ass'n of Am. Med. Colls. v.
U.S., 217 F.3d 770, 778-79 (9th Cir. 2000); Kokkonen
v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 376-78
(1994). “A Rule 12(b)(1) jurisdictional attack may be
facial or factual.” Safe Air for Everyone v.
Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (citing
White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000)).
A facial attack “asserts that the allegations contained
in a complaint are insufficient on their face to invoke
federal jurisdiction.” Id. A factual attack
“disputes the truth of the allegations that, by
themselves, would otherwise invoke federal
bring a diversity case in federal court against multiple
defendants, each plaintiff must be diverse from each
defendant.” Lee v. Am. Nat'l Ins. Co., 260
F.3d 997, 1004 (9th Cir. 2001); see also 28 U.S.C.
§ 1332(a). One claim against one non-diverse defendant
violates this requirement and is sufficient to destroy
diversity jurisdiction. See Wis. Dep't of Corr. v.
Schacht, 524 U.S. 381, 389 (1998). Furthermore,
“[t]he existence of federal jurisdiction ordinarily
depends on the facts as they exist when the complaint is
filed.” Newman-Green, Inc. v. Alfonzo-Larrain,
490 U.S. 826, 830 (1989) (citation omitted). “If
jurisdiction is lacking at the outset, the district court has
no power to do anything with the case except dismiss.”
Morongo Band of Mission Indians v. Cal. State Bd. of
Equalization, 858 F.2d 1376, 1380 (9th Cir. 1988)
(citation and internal quotation marks omitted).
Plaintiff-a California corporation-brought claims of
fraudulent inducement and constructive trust against Knohl, a
California citizen. See Compl. ¶¶ 1, 7,
55-62. As such, complete diversity was plainly lacking when
Plaintiff filed this action. See Schacht, 524 U.S.
at 389. After Defendants moved to dismiss the Complaint under
Rule 12(b)(1), however, Plaintiff voluntarily dismissed
Knohl, see Dkt. No. 22, in an apparent attempt to
cure the jurisdictional defect, see Dkt. No. 23. The
Court, however, must determine whether subject jurisdiction
existed at the time the Complaint was filed. See
Newman-Green, 490 U.S. at 830. In this case, it did not,
and Plaintiff's three-paragraph opposition cites nothing
beyond one out-of-circuit district court case from 1978 and a
practice guide in support of its apparent claim that a
litigant can use Rule 41(a) to create diversity jurisdiction
after filing by voluntarily dismissing a non-diverse party.
See Dkt. No. 23.
the Court will not assume Plaintiffs burden of establishing
subject matter jurisdiction given the utter sparseness of the
opposition brief. See Ass'n of Am. Med. Colls.,
217 F.3d at 778-79; Kokkonen v, 511 U.S. at 376-78.
Because Plaintiff-a California resident-named another
California resident as a defendant, diversity
“jurisdiction [was] lacking at the outset” of
this action, leaving this Court with “no power to do
anything with the case except dismiss.” See Morongo
Band of Mission Indians, 858 F.2d at 1380.
foregoing reasons, Defendants' motion is GRANTED, and
Plaintiffs Complaint is DISMISSED WITHOUT PREJUDICE. The
Clerk is directed to enter judgment in favor of Defendants
and close the case.
 The Court finds this matter
appropriate for disposition without oral argument and the
matter is deemed submitted. See ...