Shing v. Clovis Oncology, Inc. ( 2019 )

1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 DR. MONA SHING, Case No. 19-cv-04658-MMC 8 Plaintiff, ORDER DISMISSING ACTION FOR LACK OF SUBJECT MATTER 9 v. JURISDICTION; AFFORDING PLAINTIFF LEAVE TO AMEND; 10 CLOVIS ONCOLOGY, INC., et al., CONTINUING CASE MANAGEMENT CONFERENCE Defendants. 11 12 13 Before the Court is plaintiff Dr. Mona Shing's First Amended Complaint ("FAC"), 14 filed August 12, 2019.1 Having read and considered said pleading, as well as the initial 15 complaint, also filed August 12, 2019, the Court rules as follows. 16 In the initial complaint and in the FAC, plaintiff asserts five claims arising under 17 state law, and has named as defendants Clovis Oncology, Inc. ("Clovis"), her former 18 employer, and Ann Bozeman ("Bozeman"), an employee of Clovis. In both pleadings, 19 plaintiff alleges that, "[p]ursuant to 28 U.S.C. section 1332(a)(1), the Court has original 20 jurisdiction." (See Compl. ¶ 5; FAC ¶ 5.) 21 A district court has original jurisdiction under § 1332(a) where "the matter in 22 controversy exceeds the sum or value of $75,000, exclusive of interest and costs," see 23 28 U.S.C. § 1332(a), and the matter is between "citizens of different States," see 28 24 U.S.C. § 1332(a)(1). 25 Diversity "is determined (and must exist) as of the time the complaint is filed." See 26 Strotek Corp. v. Air Transport Ass'n, 300 F.3d 1129, 1331 (9th Cir. 2002). The initial 27 1 complaint, however, lacked any facts to support a finding that the parties were diverse in 2 citizenship as of August 12, 2019, the date the initial complaint was filed. Specifically, 3 plaintiff failed to allege the state in which she was domiciled on August 12, 2019, and she 4 failed to allege the state in which Bozeman was domiciled on that date. See Kanter v. 5 Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001) (holding "natural person's state 6 citizenship" is determined by said person's "state of domicile," i.e, "permanent home, 7 where she resides with the intention to remain or to which she intends to return"). 8 Further, with respect to Clovis, plaintiff failed to allege the state in which it is incorporated 9 and failed to allege sufficient facts to identify the state in which Clovis has its principal 10 place of business. See 28 U.S.C. § 1332(c)(1) (providing corporation is citizen of state 11 "by which it has been incorporated" and "where it has its principal place of business").2 12 The FAC, which, as noted, was filed the same date as the initial complaint, does not 13 include any new factual allegations that bear on whether the parties are diverse in 14 citizenship. 15 In sum, neither pleading includes facts to support a finding as to the citizenship of 16 plaintiff or either defendant,3 and, accordingly, the above-titled action is hereby 17 DISMISSED for lack of subject matter jurisdiction. See Fed. R. Civ. P 12(h)(3) (providing 18 "[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court 19 must dismiss the action"). If plaintiff is able to allege facts that would support a finding 20 that the parties are diverse, she may file, no later than December 20, 2019, a Second 21 22 2Although plaintiff did allege Clovis's "headquarters is located in Boulder, Colorado" (see Compl. ¶ 11), she did not allege facts to support a finding that Clovis's 23 headquarters constitute "the actual center of direction, control, and coordination." See Hertz Corp. v. Friend, 559 U.S. 77, 93 (2010) (explaining circumstances when 24 corporation's asserted "headquarters" constitute its "principal place of business). 25 3As to the amount in controversy, plaintiff alleges that it "exceeds $75,000, exclusive of interest and costs." (See Compl. ¶ 5.) Although plaintiff includes no details 26 to support such conclusory statement, the Court finds plaintiff's allegation that she was employed by Clovis as a "Senior Vice President" and was terminated approximately 27 twenty months before filing the instant action (see Compl. ¶¶ 10, 46) sufficient to plead 1 Amended Complaint. See 28 U.S.C. § 1653 (providing "[d]efective allegations of 2 || jurisdiction may be amended"). 3 In light of the above, the Case Management Conference is hereby CONTINUED 4 || from December 20, 2019, to January 31, 2020, at 10:30 a.m. A Joint Case Management 5 || Statement shall be filed no later than January 24, 2020. 6 IT IS SO ORDERED. 7 8 || Dated: December 3, 2019 : MAXINE M. CHESNEY 9 Unitéd States District Judge 10 11 12 13 16 17 18 19 20 21 22 23 24 25 26 27 28