Flenory v. Macy's, Inc. ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TANYA FLENORY, Case No. 1:23-cv-00297-JLT-SKO 12 ORDER TO SHOW CAUSE CONCERNING Plaintiff, SUBJECT MATTER JURISDICTION 13 v. 14 (Doc. 1) MACY’S INC., a corporation; and 15 MACY’S RETAIL HOLDINGS, LLC, a limited liability company, 16 17 Defendants. 18 On February 27, 2023, Tanya Flenory filed a complaint against Macy’s Inc. and Macy’s 19 Retail Holdings, LLC asserting four claims under California’s Fair Employment and Housing 20 Act, California Government Code § 12940 et seq., and a related tort claim for constructive 21 discharge. (Doc. 1 at 1.) Flenory asserts this Court has subject matter jurisdiction under 28 U.S.C. 22 § 1331 and § 1332. (Id. at 2.) The burden of establishing subject matter jurisdiction “rests upon 23 the party asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 24 (1994); see also Romero v. Securus Techs., Inc., 216 F. Supp. 3d 1078, 1085 (S.D. Cal. 2016) 25 (“As the party putting the claims before the court, Plaintiffs bear the burden of establishing 26 jurisdiction.”). The Court may consider the issue of subject matter jurisdiction sua sponte at any 27 time during the proceeding, and if the Court finds “it lacks subject matter jurisdiction, the court 28 must dismiss the action.” Fed. R. Civ. P. 12(h)(3); Scholastic Ent., Inc. v. Fox Ent. Grp., Inc., 336 1 F.3d 982, 985 (9th Cir. 2003). As described below, the complaint fails to sufficiently plead 2 federal jurisdiction. 3 First, 28 U.S.C. § 1331 grants federal courts jurisdiction “of all civil actions arising under 4 the Constitution, laws, or treaties of the United States.” The general rule, referred to as the “well- 5 pleaded complaint rule,” is that a civil action arises under federal law for purposes of § 1331 6 when a federal question appears on the face of the complaint. Caterpillar Inc. v. Williams, 482 7 U.S. 386, 392 (1987). “[F]ederal jurisdiction depends solely on the plaintiff’s claims for relief and 8 not on anticipated defenses to those claims.” City of Oakland v. BP PLC, 969 F.3d 895, 903 (9th 9 Cir. 2020) (internal quotations omitted). Because Flenory’s claims all arise under California law, 10 and she does not assert a claim under any federal law, the complaint fails to plead jurisdiction 11 under § 1331. See Stearns v. Stearns, 2022 WL 17832259, at 1 (W.D. Wash. Dec. 21, 2022) 12 (issuing order to show cause regarding subject matter jurisdiction where plaintiff failed to 13 “identify a single federal statute or constitutional provision under which he brings his claims”). 14 Second, 28 U.S.C. § 1332(a) provides jurisdiction over certain actions between citizens of 15 different states. Complete diversity is a requirement of 28 U.S.C. § 1332. Thus, the “citizenship 16 of each plaintiff [must be] diverse from the citizenship of each defendant.” Caterpillar Inc. v. 17 Lewis, 519 U.S. 61, 68 (1996). For diversity purposes, the citizenship of an individual is 18 “determined by her state of domicile, not her state of residence.” Kanter v. Warner-Lamber Co., 19 265 F.3d 853, 857 (9th Cir. 2001). Corporations are citizens of their states of incorporation and 20 their principal places of business. 28 U.S.C. § 1332(c); Harris v. Rand, 682 F.3d 846, 850 (9th 21 Cir. 2012). A limited liability company (LLC) is the citizen of every state where its owners or 22 members are citizens, regardless of its state of formation or principal place of business; the 23 citizenship of all of its members must be alleged. NewGen, LLC v. Safe Cig, LLC, 840 F.3d 606, 24 611-12 (9th Cir. 2016). 25 Flenory did not allege the citizenship of the members or owners of Macy’s Retail 26 Holdings, LLC. The complaint simply states the LLC “has its corporate offices and principal 27 place of business location in Ohio” and that it operates stores in California. (Doc. 1 at 2-3.) 28 “Absent unusual circumstances, a party seeking to invoke diversity jurisdiction should be able to 1 | allege affirmatively the actual citizenship of the relevant parties.” Kanter, 265 F.3d at 857. 2 | Because Flenory did not allege the citizenship of the LLC members or owners, the complaint fails 3 | to plead complete diversity to establish jurisdiction under § 1332. See Grayson Serv., Inc. v. 4 | Crimson Res. Mgmt. Corp., 2015 WL 6689261, at *3 (E.D. Cal. Oct. 28, 2015) (granting motion 5 || to dismiss where plaintiff's second amendment complaint was “devoid of any mention of the 6 || citizenship of the owners of the LLC” because “failure to specify the state citizenship of the 7 || parties is fatal to the assertion of diversity jurisdiction”). Accordingly, 8 1. Within fifteen days of the issuance of this order, Flenory SHALL show cause in 9 writing why her claims should not be dismissed for lack of subject matter jurisdiction. 10 2. Alternatively, within fifteen days, Flenory may either file an amended complaint that 11 contains allegations addressing the court’s jurisdiction and the issues identified in this 12 order or may voluntarily dismiss her claims. 13 Failure to comply with this order will result in dismissal with prejudice of all claims 14 due to lack of jurisdiction. 15 16 IT IS SO ORDERED. 17] Dated: _March 1, 2023 Charis [Tourn TED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28