Mesch v. Southwest Airlines Company ( 2020 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Randall Mesch, No. CV-20-01957-PHX-DWL 10 Plaintiff, ORDER 11 v. 12 Southwest Airlines Company, et al., 13 Defendants. 14 15 The Court has an independent obligation to determine whether it has subject- 16 matter jurisdiction. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999). 17 Pursuant to Rule 12(h)(3) of the Federal Rules of Civil Procedure, “[i]f the court 18 determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the 19 action.” 20 Defendant removed this action solely on the basis of diversity jurisdiction. (Doc. 21 1.) The party seeking to invoke diversity jurisdiction has the burden of 22 proof, Lew v. Moss, 797 F.2d 747, 749-50 (9th Cir. 1986), by a preponderance of the 23 evidence. McNatt v. Allied-Signal, Inc., 972 F.2d 1340 (9th Cir. 1992); see 13B Federal 24 Practice § 3611 at 521 & n. 34. There is a strong presumption against removal 25 jurisdiction. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (“Federal jurisdiction 26 must be rejected if there is any doubt as to the right of removal in the first instance.”). 27 Diversity jurisdiction exists when there is complete diversity of citizenship 28 between the plaintiffs and the defendants and the amount in controversy exceeds $75,000, 1 exclusive of interests and costs. 28 U.S.C. § 1332. A controversy meets this requirement 2 when “all the persons on one side of it are citizens of different states from all the persons 3 on the other side.” Strawbridge v. Curtiss, 7 U.S. 267 (1806). Having reviewed 4 the Notice of Removal to determine if subject matter jurisdiction exists, the Court finds 5 that the Notice of Removal is facially deficient because it fails to affirmatively set forth 6 the facts necessary to determine Plaintiffs’ citizenship. 7 The Notice of Removal states that Plaintiff is an Arizona resident. (Doc. 1 ¶ 4.) 8 And indeed, the Complaint alleges that Plaintiff is an Arizona resident. (Doc. 1-1 ¶ 1.) 9 But the factual allegation that Plaintiff is a resident of Arizona does not establish that he 10 is a citizen of Arizona for purposes of establishing diversity jurisdiction. “It has long 11 been settled that residence and citizenship [are] wholly different things within the 12 meaning of the Constitution and the laws defining and regulating the jurisdiction of the 13 . . . courts of the United States; and that a mere averment of residence in a particular state 14 is not an averment of citizenship in that state for the purpose of jurisdiction.” Steigleder 15 v. McQuesten, 198 U.S. 141, 143 (1905). “To be a citizen of a state, a natural person 16 must first be a citizen of the United States. The natural person’s state citizenship is then 17 determined by her state of domicile, not her state of residence. A person’s domicile is her 18 permanent home, where she resides with the intention to remain or to which she intends 19 to return.” Kanter v. Warner–Lambert Co., 265 F.3d 853, 858-59 (9th Cir. 2001) 20 (emphasis added) (citations omitted). See also id. (“In this case, neither Plaintiffs’ 21 complaint nor [Defendants’] notice of removal made any allegation regarding Plaintiffs’ 22 state citizenship. Since the party asserting diversity jurisdiction bears the burden of 23 proof, [Defendants’] failure to specify Plaintiffs’ state citizenship was fatal to 24 Defendants’ assertion of diversity jurisdiction.”). 25 To cure this pleading deficiency, the Court will require the removing Defendant to 26 file an amended notice of removal that affirmatively states Plaintiffs’ citizenship under 27 the correct legal standard. Star Ins. Co. v. West, 2010 WL 3715155, *2 (D. Ariz. 2010); 28 see also NewGen, LLC v. Safe Cig, LLC, 840 F.3d 606, 612 (9th Cir. 2016) (“Courts may || permit parties to amend defective allegations of jurisdiction at any stage in the 2|| proceedings.”). Defendant may state the relevant jurisdictional facts on information and 3|| belief if they are not reasonably ascertainable. Carolina Cas. Ins. Co. v. Team Equipment, Inc., 741 F.3d 1082, 1087 (9th Cir. 2014). Defendant is advised that its 5 || failure to timely comply with this order shall result in the remand of this action without || further notice for lack of subject matter jurisdiction. 7 Accordingly, 8 IT IS ORDERED that removing Defendant shall file an amended notice of |} removal properly stating a jurisdictional basis for this action no later than November 4, 2020. 11 IT IS FURTHER ORDERED that if Defendant fails to file an amended notice of || removal by this deadline, the Clerk of Court shall remand this action to state court. 13 Dated this 21st day of October, 2020. 14 15 Lm ee” 16 f t _o——— Dominic W. Lanza 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28 -3-