Long v. Okopny ( 2020 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Jane Long, No. CV-20-02211-PHX-DWL 10 Plaintiff, ORDER 11 v. 12 Keli J. Okopny, as Personal Representative of the Estate of Charles Walis Haeger, 13 Defendant. 14 15 16 Pursuant to the Court’s November 19, 2020 order (Doc. 5), Plaintiff filed a First 17 Amended Complaint (“FAC”), properly naming Keli J. Okopny, as Personal 18 Representative of the Estate of Charles Walis Haeger, as the Defendant in this action 19 (Doc. 6) and a notice of filing amended pleading pursuant to LRCiv 15.1(b) which 20 includes a redlined draft (Doc. 7). The redlined draft, however, is a printed version of the 21 filing at Doc. 6, and the notice of filing indicates that Plaintiff will file a “clean” copy 22 “[o]n request of Court.” (Doc. 7 at 1.) In fact, a “clean” copy is required as the operative 23 complaint, although perhaps the local rules do not clearly state as much. Only the draft 24 attached to the notice of filing should be redlined. 25 Moreover, Plaintiff must file a second amended complaint alleging Keli Okopny’s 26 state of citizenship. As to individual natural persons, an allegation about an individual’s 27 residence does not establish his or her citizenship for purposes of establishing diversity 28 jurisdiction. “It has long been settled that residence and citizenship [are] wholly different 1 things within the meaning of the Constitution and the laws defining and regulating the 2 jurisdiction of the . . . courts of the United States; and that a mere averment of residence 3 in a particular state is not an averment of citizenship in that state for the purpose of 4 jurisdiction.” Steigleder v. McQuesten, 198 U.S. 141, 143 (1905). “To be a citizen of a 5 state, a natural person must first be a citizen of the United States. The natural person’s 6 state citizenship is then determined by her state of domicile, not her state of residence. A 7 person’s domicile is her permanent home, where she resides with the intention to remain 8 or to which she intends to return.” Kanter v. Warner-Lambert Co., 265 F.3d 853, 858-59 9 (9th Cir. 2001) (citations omitted). Defendant’s citizenship can be pled on information 10 and belief. Carolina Cas. Ins. Co. v. Team Equipment, Inc., 741 F.3d 1082, 1087 (9th 11 Cir. 2014) (allowing plaintiff to plead jurisdictional allegations on information and belief 12 “where the facts supporting jurisdiction [were] not reasonably ascertainable by the 13 plaintiff”). 14 Plaintiff must again amend the complaint to correct these deficiencies.1 NewGen, 15 LLC v. Safe Cig, LLC, 840 F.3d 606, 612 (9th Cir. 2016) (“Courts may permit parties to 16 amend defective allegations of jurisdiction at any stage in the proceedings.”). 17 Accordingly, 18 IT IS ORDERED that by December 17, 2020, Plaintiff shall file an amended 19 complaint in accordance with this order. 20 IT IS FURTHER ORDERED that if Plaintiff fails to timely file her amended 21 complaint, the Clerk of the Court shall dismiss this case, without prejudice, for lack of 22 subject-matter jurisdiction. 23 … 24 … 25 … 26 … 27 1 Again, this amended complaint pursuant to court order will not affect Plaintiff’s 28 right under Rule 15(a)(1) to later amend once as a matter of course, if she chooses to do so. See, e.g., Ramirez v. Cty. of San Bernardino, 806 F.3d 1002, 1006-09 (9th Cir. 2015). 1 IT IS FURTHER ORDERED that the Clerk of Court shall amend the caption of 2|| this case to reflect that Keli J. Okopny, as Personal Representative of the Estate of 3 || Charles Walis Haeger, is the Defendant in this action. 4 Dated this 3rd day of December, 2020. 5 fT-L "Dominic W. Lanza 8 United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-