United States District Court, N.D. California
DR. MONA SHING, Plaintiff,
CLOVIS ONCOLOGY, INC., et al., Defendants.
ORDER DISMISSING ACTION FOR LACK OF SUBJECT MATTER
JURISDICTION; AFFORDING PLAINTIFF LEAVE TO AMEND; CONTINUING
CASE MANAGEMENT CONFERENCE
M. CHESNEY United States District Judge
the Court is plaintiff Dr. Mona Shing's First Amended
Complaint ("FAC"), filed August 12,
2019. Having read and considered said pleading,
as well as the initial complaint, also filed August 12, 2019,
the Court rules as follows.
initial complaint and in the FAC, plaintiff asserts five
claims arising under state law, and has named as defendants
Clovis Oncology, Inc. ("Clovis"), her former
employer, and Ann Bozeman ("Bozeman"), an employee
of Clovis. In both pleadings, plaintiff alleges that,
"[p]ursuant to 28 U.S.C. section 1332(a)(1), the Court
has original jurisdiction." (See Compl. ¶
5; FAC ¶ 5.)
district court has original jurisdiction under § 1332(a)
where "the matter in controversy exceeds the sum or
value of $75, 000, exclusive of interest and costs,"
see 28 U.S.C. § 1332(a), and the matter is
between "citizens of different States,"
see 28 U.S.C. § 1332(a)(1).
"is determined (and must exist) as of the time the
complaint is filed." See Strotek Corp. v. Air
Transport Ass'n, 300 F.3d 1129, 1331 (9th Cir.
2002). The initial complaint, however, lacked any facts to
support a finding that the parties were diverse in
citizenship as of August 12, 2019, the date the initial
complaint was filed. Specifically, plaintiff failed to allege
the state in which she was domiciled on August 12, 2019, and
she failed to allege the state in which Bozeman was domiciled
on that date. See Kanter v. Warner-Lambert Co., 265
F.3d 853, 857 (9th Cir. 2001) (holding "natural
person's state citizenship" is determined by said
person's "state of domicile," i.e,
"permanent home, where she resides with the intention to
remain or to which she intends to return"). Further,
with respect to Clovis, plaintiff failed to allege the state
in which it is incorporated and failed to allege sufficient
facts to identify the state in which Clovis has its principal
place of business. See 28 U.S.C. § 1332(c)(1)
(providing corporation is citizen of state "by which it
has been incorporated" and "where it has its
principal place of business").The FAC, which, as noted, was
filed the same date as the initial complaint, does not
include any new factual allegations that bear on whether the
parties are diverse in citizenship.
neither pleading includes facts to support a finding as to
the citizenship of plaintiff or either defendant,
and, accordingly, the above-titled action is hereby DISMISSED
for lack of subject matter jurisdiction. See Fed. R.
Civ. P 12(h)(3) (providing "[i]f the court determines at
any time that it lacks subject-matter jurisdiction, the court
must dismiss the action"). If plaintiff is able to
allege facts that would support a finding that the parties
are diverse, she may file, no later than December 20, 2019, a
Second Amended Complaint. See 28 U.S.C. § 1653
(providing "[d]efective allegations of jurisdiction may
light of the above, the Case Management Conference is hereby
CONTINUED from December 20, 2019, to January 31, 2020, at
10:30 a.m. A Joint Case Management Statement shall be filed
no later than January 24, 2020.
IS SO ORDERED.
The case was reassigned to the
undersigned on November 14, 2019.
Although plaintiff did allege
Clovis's "headquarters is located in Boulder,
Colorado" (see Compl. ¶ 11), she did not
allege facts to support a finding that Clovis's
headquarters constitute "the actual center of direction,
control, and coordination." See Hertz Corp. v.
Friend, 559 U.S. 77, 93 (2010) (explaining circumstances
when corporation's asserted "headquarters"
constitute its "principal place of business).
As to the amount in controversy,
plaintiff alleges that it "exceeds $75, 000, exclusive
of interest and costs." (See Compl. ¶ 5.)
Although plaintiff includes no details to support such
conclusory statement, the Court finds plaintiff's
allegation that she was employed by Clovis as a "Senior
Vice President" and was terminated approximately twenty
months before filing the instant action (see Compl.