Carolina Casualty Insurance Co v. Team Equipment, Inc., et al

Filing

FILED OPINION (RAYMOND C. FISHER, RICHARD R. CLIFTON and JAMES K. SINGLETON) REVERSED AND REMANDED Judge: RRC Authoring, FILED AND ENTERED JUDGMENT. [8964407] [12-56203, 12-56235]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

CAROLINA CASUALTY INSURANCE
CO., an Iowa corporation,
Plaintiff-Appellant,
v.
TEAM EQUIPMENT, INC., a California
corporation; BELL HOP CLEANERS OF
CALIFORNIA, INC., a New Mexico
corporation; GAMET ENTERPRISES,
LLC, a New Mexico limited liability
company; U.S. DRY CLEANING
SERVICES CORP., a Delaware
corporation, DBA U.S. Dry Cleaning
Corporation; STEAM PRESS
HOLDINGS, INC., a Hawaii
corporation, DBA Young Laundry
and Dry Cleaning; CLEANERS CLUB
ACQUISITIONS, INC., a California
corporation, DBA Boston Cleaners;
USDCC CVR MERGER SUB, LLC, a
California limited liability company,
DBA Roadrunner Cleaners; USDC
PORTSMOUTH, INC., a California
corporation; USDC TUCHMAN
INDIANA, INC., a California
corporation; USDC FRESNO, INC., a
California corporation; USDC
FRESNO 2, INC., a California

Nos. 12-56203
12-56235
D.C. No.
2:12-cv-03133JFW-JEM

OPINION

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corporation; TIMOTHY DENARI, an
individual; RIAZ CHATAUNI, an
individual; ROBERT Y. LEE, an
individual, AKA Robbie Lee;
MARTIN BRILL, an individual;
MICHAEL DRACE, an individual; KIM
COX, an individual; EARL
GREENBERG, an individual;
ANTHONY J.A. BRYAN, an
individual,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Argued and Submitted
November 8, 2013—Pasadena, California
Filed February 4, 2014
Before: Raymond C. Fisher and Richard R. Clifton, Circuit
Judges, and James K. Singleton, Senior District Judge.*
Opinion by Judge Clifton

*

The Honorable James K. Singleton, Senior District Judge for the U.S.
District Court for the District of Alaska, sitting by designation.

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SUMMARY**

Diversity Jurisdiction
The panel reversed the district court’s dismissal based on
failure to establish diversity jurisdiction.
The panel held that the original complaint should not have
been dismissed without leave to amend because the district
court did not find that any attempt to amend the complaint
would be futile. The panel also held that when information
regarding a defendant that is necessary to establish diversity
of citizenship is not reasonably available to a plaintiff, the
plaintiff should be permitted to plead jurisdictional
allegations as to those defendants on information and belief
and without affirmatively asserting specific details regarding
the citizenship of those defendants.

COUNSEL
James K. Thurston, Melissa A. Murphy-Petros (argued),
Wilson Elser Moskowitz Edelman & Dicker LLP, Chicago,
Illinois, for Plaintiff-Appellant.
Jonathan B. Sokol, Los Angeles, California, for DefendantAppellee Team Equipment, Inc.

**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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OPINION

CLIFTON, Circuit Judge:
This appeal concerns the sufficiency of allegations
required to plead diversity jurisdiction under 28 U.S.C.
§ 1332. Plaintiff-Appellant Carolina Casualty Insurance Co.
(“Carolina”) filed suit asserting federal jurisdiction based on
diversity and thus bore the burden of establishing the
diversity. Before the complaint was served, the district court
dismissed it without leave to amend because Carolina had
failed to allege the citizenship of any of the members of the
defendants that were limited liability companies (“LLCs”),
had alleged that certain individual defendants were residents
rather than citizens of a state, and had made its jurisdictional
allegations on information and belief. Carolina then filed a
proposed amended complaint. The court did not accept this
complaint as sufficient because Carolina still pled its
jurisdictional allegations on information and belief and still
failed to establish the citizenship of some defendants,
including the LLCs.
We reverse and remand. Because the district court did
not conclude that any amendment would be futile, it should
have dismissed the initial complaint with leave for Carolina
to amend it to correct, as far as possible, the defective
jurisdictional allegations. Furthermore, the district court
should not have dismissed the complaint for failure to plead
allegations of citizenship affirmatively and on knowledge,
rather than on information and belief, when the necessary
information was not reasonably available to Carolina.

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I. Background
Despite its name, Carolina is an insurance company
incorporated in Iowa and with its principal place of business
in Florida. Carolina issued a corporate liability and directors
and officers’ liability insurance policy to U.S. Dry Cleaning
Corp. (“Dry Cleaning”) that was effective between January
2009 and January 2011. The policy excluded from coverage
losses “for which the Insureds are not financially liable or
which are without legal recourse to the Insureds.”
Dry Cleaning purchased dry cleaning stores from Team
Equipment, Inc. and two affiliated entities (collectively,
“Team Equipment”) in February 2008. For partial payment
of the purchase price, Dry Cleaning issued notes to Team
Equipment. Two years later, Team Equipment filed an action
against Dry Cleaning and certain of its officers, directors, and
affiliated entities (collectively, the “Underlying Defendants”)
to enforce the notes. Team Equipment settled its claims
against Dry Cleaning in June 2011 and agreed to “limit the
enforcement of any judgment or award . . . , including
attorney’s fees, solely to the proceeds of [Dry Cleaning’s]
Insurance Policy.” Team Equipment also released its claims
against the Underlying Defendants.
Carolina filed a complaint in the United States District
Court for the Central District of California against Team
Equipment, Dry Cleaning, and the other Underlying
Defendants for a declaratory judgment that Carolina was not
liable under Dry Cleaning’s insurance policy. Carolina
alleged that, because the defendants had agreed to limit the
enforcement of the judgment to the proceeds from Dry
Cleaning’s insurance policy, the settlement constituted a loss
for which there was no recourse to the Insureds and which

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was therefore outside the scope of coverage. The asserted
basis of jurisdiction was diversity of citizenship under
28 U.S.C. § 1332.
The district court dismissed the complaint, without prior
notice to Carolina, seventeen days after it was filed. Carolina
had not yet served the complaint, nor had any of the
defendants responded to it. The district court ruled that
Carolina had “not adequately alleged the facts essential for
. . . subject matter jurisdiction.” First, the district court
observed that two of the entity defendants were LLCs, but
Carolina had not alleged the citizenship of the LLCs by
alleging the citizenship of their members. See Johnson v.
Columbia Props. Anchorage, LP, 437 F.3d 894, 899 (9th Cir.
2006) (“[A]n LLC is a citizen of every state of which its
owners/members are citizens.”). Instead, Carolina had
alleged the states under whose laws the LLCs were organized
and where they had their principal places of business, as if the
LLCs were corporations. See 28 U.S.C. § 1332(c)(1). As to
the individual defendants, the district court noted that
Carolina had alleged their states of residency and not their
states of citizenship, as required for diversity jurisdiction.
Finally, the court observed that Carolina had made its
allegations “on information and belief,” not on knowledge,
and held that this was insufficient to allege jurisdiction. The
court dismissed the complaint under Federal Rule of Civil
Procedure 12(h)(3), which provides that “[i]f the court
determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”
Carolina filed a motion to alter or amend the judgment
under Federal Rule of Civil Procedure 59(e). As part of the
motion, Carolina submitted a proposed amended complaint.
Carolina advised the court in its moving papers that it was

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unable to determine the citizenship of the LLCs, because their
organizational filings did not list their members. As a result,
Carolina alleged simply that the members of the LLCs were
“citizens of neither Iowa nor Florida.” As to the eight
individual defendants, Carolina alleged that four of them
were citizens of California and that four of them were citizens
of neither Iowa nor Florida. Carolina continued to make its
allegations on information and belief but made clear that the
basis for its allegations were the four complaints or proposed
complaints filed in the underlying action.
The district court denied the motion for reconsideration
and held that the proposed amended complaint also suffered
from jurisdictional defects. The district court pointed out that
Carolina had not alleged the principal place of business of
one of the corporate defendants, USDC Tuchman Indiana,
Inc., and had simply stated that it was “unknown.”1 The court
faulted Carolina for not being able to specify the citizenship
of the members of the LLCs and held that it was insufficient
to allege simply that they were not citizens of Iowa or

1

The original complaint also suffered from this problem, although the
district court did not explicitly point that out in its first order. Carolina’s
motion for reconsideration stated that in the underlying action the
corporation had been identified as “a California corporation with its
corporate headquarters in California but doing business in the State of
Virginia.” Notwithstanding the company’s name, that should have given
Carolina enough to allege, at least on information and belief, that the
company’s principal place of business was in California. See Hertz Corp.
v. Friend, 559 U.S. 77, 92–93 (2010). Yet the proposed amended
complaint submitted with the motion for reconsideration alleged only, as
the district court noted, that the corporation’s principal place of business
was “unknown,” an allegation that is insufficient. It would be appropriate
to make Carolina allege more than “unknown,” but, as discussed below,
that is a correctable defect and would not justify ultimate dismissal of the
action, unless Carolina failed to correct it.

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Florida. And, the court again rejected Carolina’s attempt to
plead jurisdictional allegations on information and belief.
Carolina appealed, arguing that the district court should
not have dismissed the complaint or denied Carolina leave to
amend.
II. Discussion
We review a district court’s decision to dismiss a
complaint for lack of subject-matter jurisdiction de novo.
Carter v. Health Net of Cal., Inc., 374 F.3d 830, 833 (9th Cir.
2004). The district court’s decision to deny leave to amend a
complaint is reviewed for abuse of discretion. Universal
Mortg. Co. v. Prudential Ins. Co., 799 F.2d 458, 459 (9th Cir.
1986).
We conclude that the district court should not have
dismissed Carolina’s original complaint without leave to
amend, because it did not find that any attempt to amend the
complaint would be futile. In addition, because the
information necessary to establish the diversity of the
citizenship of some of the defendants was not reasonably
available to plaintiff, we conclude that the court should have
permitted Carolina to plead its jurisdictional allegations as to
those defendants on information and belief and without
affirmatively asserting those defendants’ citizenship. The
diversity issues can be better considered by the court after the
defendants have been served and had an opportunity to
respond.

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A. Dismissal without leave to amend
A complaint should not be dismissed without leave to
amend unless amendment would be futile. McQuillion v.
Schwarzenegger, 369 F.3d 1091, 1099 (9th Cir. 2004). The
court should “freely give leave” to amend a complaint when
justice so requires. Fed. R. Civ. P. 15(a)(2).
In dismissing the complaint, the court relied on the plain
language of Rule 12(h)(3) and the proposition that “the
subject matter of the district court is not a waivable matter.”
Emerich v. Touche Ross & Co., 846 F.2d 1190, 1194 n.2 (9th
Cir. 1988). But the district court did not conclude that
amendment would be futile, nor did it give any reason that
might support such a conclusion. The defects in the original
complaint were not of a kind that were uncorrectable, if
Carolina had or could obtain the necessary information. A
plaintiff should be permitted to amend a complaint to cure
“technical” defects. Lopez v. Smith, 203 F.3d 1122, 1129 (9th
Cir. 2000) (en banc). The technical defects in this case
include alleging diversity jurisdiction based on residency
rather than citizenship, and failing to allege the principal
place of business of a corporation.
Even where, as here, the district court entertained a
motion for reconsideration after denying the complaint,
dismissing the complaint without leave to amend was still
improper. The district court noted that a motion for
reconsideration is an “extraordinary remedy, to be used
sparingly.” Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir.
2003) (internal quotation marks omitted). Even though the
court went on to consider Carolina’s new jurisdictional
allegations, the application of the Rule 59(e) standard could
have affected the court’s decision to reject the proposed

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amended complaint. At least in theory, if perhaps not in
practice in this case, that Rule 59(e) standard is much tougher
than the Rule 15(a)(2) standard for granting leave to amend
a complaint. In its initial dismissal, the district court should
have permitted Carolina to attempt to cure the defects by
amending the complaint.
B. Pleading jurisdiction when the jurisdictional facts are
in the control of the opposing party
The novel issue presented by this case is how a plaintiff
may allege diversity jurisdiction where the facts supporting
jurisdiction are not reasonably ascertainable by the plaintiff.
Carolina explained in its motion for reconsideration that it
had made efforts to determine the citizenship of the two LLCs
and four of the eight individual defendants but it was unable
to do so from publicly available information. The business
filings that Carolina submitted to the district court show that
information necessary to determining the citizenship of the
LLCs could not be determined from the public filings of those
companies. Furthermore, Carolina reported that it was not
able to allege the citizenship of some of the individual
defendants based on their residency, as there was no
information about their residency in the underlying
complaints.2 See Mondragon v. Capital One Auto Fin.,
736 F.3d 880, 886 (9th Cir. 2013) (“[A] court should consider
the entire record to determine whether evidence of residency

2
If Carolina is unable to determine the residence of those individual
defendants, it can be anticipated that serving a complaint and summons on
them might also pose a problem, but that problem is not before us at this
time. We presume that Carolina may obtain the information it needs via
discovery from the defendants it can locate.

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can properly establish citizenship.” (internal quotation marks
omitted)).
Carolina made a showing that at least some of the
information necessary to establish the diversity of the parties’
citizenship was within the defendants’ control and argued that
it should have been excused from the general requirement
that it must plead diversity affirmatively and on knowledge.
We have already noted that in “unusual circumstances” a
party need not affirmatively allege the citizenship of an
opposing party. Kanter v. Warner-Lambert Co., 265 F.3d
853, 857 (9th Cir. 2001). We conclude that in this situation
it was sufficient for Carolina to allege simply that the
defendants were diverse to it. Relatedly, we hold that
Carolina should have been permitted to plead its allegations
on the basis of information and belief. See 5 Charles Alan
Wright et al., Federal Practice and Procedure: Federal Rules
of Civil Procedure § 1224 (3d ed., updated 2013) (noting that
permitting allegations to be pled on information and belief “is
a practical necessity”); id. § 1206 (observing that it would be
“unduly restrictive” to prevent a party from pleading
jurisdiction on information and belief).
Other circuit courts have also adopted the sensible
principle that, at this early stage in the proceedings, a party
should not be required to plead jurisdiction affirmatively
based on actual knowledge. In Medical Assurance Co. v.
Hellman, 610 F.3d 371, 376 (7th Cir. 2010), the Seventh
Circuit held that a plaintiff was permitted to plead on
information and belief that the defendants were citizens of
different states. The defendants could not object that the
plaintiff had not proven their citizenship, because they had
not proffered any evidence rebutting the factual premise of
the jurisdictional allegations. Id. Instead, the court held that

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the complaint could stand and the district court should
reevaluate its jurisdiction if contrary information emerged
later. Id. In Lewis v. Rego Co., 757 F.2d 66, 68–69 (3d Cir.
1985), the Third Circuit held that three of the four defendants
were permitted to allege in a removal petition “on
information and belief” that the fourth defendant, who had
not joined the removal petition, was “not a citizen of
Pennsylvania,” and that this was “sufficient to establish
diversity jurisdiction.”
The cases cited in the district court’s order do not support
a contrary conclusion. In America’s Best Inns, Inc. v. Best
Inns of Abilene, L.P., 980 F.2d 1072, 1074 (7th Cir. 1992)
(per curiam), for example, the Seventh Circuit held that an
affidavit of citizenship made “to the best of [the plaintiff’s]
knowledge and belief” was insufficient to establish diversity
jurisdiction. But in remanding the case with instructions to
dismiss, the court noted that the parties had had “chance after
chance to establish diversity of citizenship.” Id. Thus, the
complaint was not dismissed until after the plaintiff had
served its complaint, the defendant had answered, and the
parties had been specifically reminded of the need to establish
diversity of citizenship. Id. at 1073–74. The approach of the
Seventh Circuit does not support the district court’s dismissal
of the complaint without leave to amend.
The district court also quoted the Supreme Court’s
decision in Smith v. McCullough, 270 U.S. 456, 459 (1926),
that “a plaintiff . . . must show in his pleading, affirmatively
and distinctly, the existence of whatever is essential to federal
jurisdiction.” But the district court did not quote the end of
this sentence, in which the Court noted that a district court
need not dismiss a defective complaint if “the defect [can] be
corrected by amendment.” Id. Here, it is possible that

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Carolina will be able to amend its complaint adequately if the
defendants respond.
If and when the defendants respond to the complaint, the
district court can revisit the jurisdictional allegations. If the
defendants deny that the court has jurisdiction, the district
court should evaluate the record created by the parties to
determine its jurisdiction. See Mondragon, 736 F.3d at 886.
Jurisdictional discovery may be appropriate. See Harris
Rutsky & Co. Ins. Servs., Inc. v. Bell & Clements Ltd.,
328 F.3d 1122, 1135 (9th Cir. 2003). Even if the defendants
concede jurisdiction, the district court may still conclude that
some further showing of citizenship may be required to
confirm its jurisdiction. See Am.’s Best Inns, 980 F.2d at
1074. But it should not be assumed at this stage that a proper
basis for jurisdiction cannot be established.3
III.

Conclusion

We conclude that the original complaint should not have
been dismissed without leave to amend. We also hold that
when information regarding a defendant that is necessary to
establish diversity of citizenship is not reasonably available
to a plaintiff, the plaintiff should be permitted to plead
jurisdictional allegations as to those defendants on
information and belief and without affirmatively asserting

3

It is, to be sure, possible that none of the defendants, after service, will
respond to the complaint. Given the nature of this action and these
defendants, that seems highly unlikely, however. What should happen in
that unlikely event is not a question that is before us.

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specific details regarding the citizenship of those defendants.
The diversity issue is better addressed after the defendants
have had an opportunity to respond to the complaint.
REVERSED AND REMANDED.

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