Ying Qing Lu v. Ariabin ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1228
YING QING LU,
Plaintiff – Appellant,
v.
CYRUS AZAR ARIABIN,
Defendant – Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:07-cv-01034-LMB-TRJ)
Submitted: September 29, 2009 Decided: October 19, 2009
Before NIEMEYER, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Henry St. John FitzGerald, Arlington, Virginia, for Appellant.
Craig C. Reilly, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ying Qing Lu appeals the district court’s orders
granting the Defendant’s motion to dismiss Lu’s civil action for
lack of subject matter jurisdiction and denying her motion to
alter or amend judgment. On appeal, Lu contends the district
court erred in denying her motion for jurisdictional discovery
and in deciding the factual issue of Defendant’s citizenship
based on the parties’ declarations. We affirm.
If the district court determines that it lacks subject
matter jurisdiction, the court must dismiss the action. Fed. R.
Civ. P. 12(h)(3); Arbaugh v. Y&H Corp., 546 U.S. 500, 514
(2006). “When, as here, a defendant challenges the existence of
subject matter jurisdiction in fact, the plaintiff bears the
burden of proving the truth of such facts by a preponderance of
the evidence.” United States ex rel. Vuyyuru v. Jadhav, 555
F.3d 337, 347 (4th Cir.), pet. for cert. filed, 78 U.S.L.W. 3058(2009). The district court may “resolve the jurisdictional
facts in dispute by considering evidence outside the pleadings,
such as affidavits.” Id. at 348.
Citizenship presents a preliminary question of fact to
be determined by the district court. Sligh v. Doe, 596 F.2d
1169, 1171 n.9 (4th Cir. 1979). We review the district court’s
factual findings with respect to jurisdiction for clear error
and the legal conclusions flowing therefrom de novo. Velasco v.
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Government of Indonesia, 370 F.3d 392, 398 (4th Cir. 2004). We
will only overturn a district court’s finding of fact as clearly
erroneous when we are “left with the definite and firm
conviction that a mistake has been committed.” Vuyyuru, 555
F.3d at 350 (citations omitted). We review a district court’s
limitation of jurisdictional discovery and its decision whether
to conduct an evidentiary hearing for abuse of discretion. See
Thigpen v. United States, 800 F.2d 393, 397-98 (1986), overruled
on other grounds by Sheridan v. United States, 487 U.S. 392(1988).
With these standards in mind, we have reviewed the
record and find no abuse of discretion or reversible error.
Accordingly, we affirm the district court’s orders. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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