Alon Neiman v. Gavriel Barazani ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 1 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALON NEIMAN; NIR ABRAHAM LEVY, No. 22-15843
Plaintiffs-Appellants, D.C. No.
2:21-cv-01824-CDS-NJK
v.
GAVRIEL BARAZANI; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Cristina D. Silva, District Judge, Presiding
Submitted July 27, 2023**
Before: OWENS, LEE, and BUMATAY, Circuit Judges.
Appellants Alon Neiman and Nir Abraham Levy appeal pro se from the
district court’s judgment dismissing their contract and fraud action for lack of
subject-matter jurisdiction. We have jurisdiction under 28 U.S.C. § 1291 and review
de novo. Carolina Cas. Ins. Co. v. Team Equip., Inc., 741 F.3d 1082, 1086 (9th Cir.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2014). We affirm.
The party asserting federal jurisdiction bears the burden of establishing it.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Diversity jurisdiction
requires complete diversity. Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996). “Rule
12(b)(1) jurisdictional attacks can be either facial or factual.” White v. Lee, 227 F.3d
1214, 1242 (9th Cir. 2000).
Appellants’ jurisdictional theory requires diversity jurisdiction. According to
the complaint, Neiman and Levy are both Nevada citizens. Appellants initially
alleged in the complaint that Barazani is also a resident of Nevada. But later, in
opposition to the motion to dismiss, they alleged that Barazani is a Colorado citizen.
To support the claim of Colorado citizenship, Appellants provided an undated photo
of Barazani allegedly holding a Colorado conditional medical marijuana license for
Aspen Forest, LLC. Appellants argued that recipients of such licenses must be
Colorado citizens. Appellants also alleged that Barazani was served twice in
Colorado and that Barazani was living in Denver to physically manage a dispensary.
Barazani, in contrast, provided a signed declaration under penalties of perjury
that he had been a permanent resident of Nevada since before the complaint was
filed and had no intention to move elsewhere. He also provided a photo of his
Nevada driver’s license and a photo of a utility bill with a Nevada address for service
around the time the complaint was filed. Furthermore, Barazani provided a
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declaration that he had been a member of GII, LLC, now revoked, and was currently
a member of Aspen Forest, LLC.
The district court properly dismissed Appellants’ action because they failed
to satisfy the burden of establishing subject matter jurisdiction. First, Appellants’
complaint alleges Barazani is a Nevada resident, which fails to establish diversity of
citizenship. Second, we agree with the district court that Appellants’ factual
allegations do not establish Barazani’s Colorado residence. Appellants have not
shown that Barazani must have been a Colorado citizen in order to receive a
Colorado conditional medical marijuana license. Also, that Barazani was served
twice in Colorado does not establish domicile; people may travel outside their state
of residence—even for extended periods of time—without affecting their domicile.
Furthermore, Appellants do not dispute that Barazani has a Nevada driver’s license
and a utility bill showing him paying for services in Nevada at the time the complaint
was filed. Finally, Barazani’s Nevada citizenship extends to GII, LLC and Aspen
Forest, LLC, further defeating diversity. See NewGen, LLC v. Safe Cig, LLC, 840
F.3d 606, 612 (9th Cir. 2016).
AFFIRMED.
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