ARIZONA BUSINESS BANK

Filing 35

ORDER that within 10 days from the date of this order, pla shall file a memorandum with this court setting forth all branch locations and further setting forth any facts or argument that would otherwise establish that pla's principal place of business is other than in this state. Dfts may respond in the time set forth by the rules. (See document for full details). Signed by Judge G Murray Snow on 6/30/2009. (LAD)

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WO
NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

COBIZ BANK, a Colorado Corporation) doing business as ARIZONA BUSINESS) ) BANK, ) ) Plaintiff, ) ) vs. ) ) ) GRACE CAPITAL, L.L.C., et al., ) ) Defendants. ) )

No. CV-09-1021-PHX-GMS ORDER

Plaintiff's Verified Complaint and Application for Provisional Remedy With Notice (Dkt. # 2) sets forth under oath that Plaintiff Arizona Business Bank is authorized to do business in Arizona. It further asserts that "the contracts out of which Plaintiff's claims arise were formed and to be performed in, and provide for jurisdiction and venue in Maricopa County, Arizona." The Defendants are for the most part Arizona residents. Yet, the Plaintiff's basis for asserting jurisdiction is diversity. While the Court understands that Arizona Business Bank is incorporated in Colorado, corporations incorporated in one state, but having their principal place of business in another are deemed to be citizens of both states. They can bring an action against Defendants in diversity only if no opposing party is a citizen of either state. Bank of Calif. Nat'l Ass'n v. Twin Harbors Lumber Co., 465 F.2d 489, 491-92 (9th Cir. 1972).

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The Court is required to determine its own jurisdiction. "[A] federal court may dismiss

2 sua sponte if jurisdiction is lacking." Fiedler v. Clark, 714 F.2d 77, 78 (9th Cir. 1983) (citing 3 Mansfield, Coldwater & Lake Mich. R.y. Co. v. Swan, 111 U.S. 379, 382 (1884)); see 4 Franklin v. Or. State Welfare Div., 662 F.2d 1337, 1342 (9th Cir. 1981) (same). "While a 5 party is entitled to notice and an opportunity to respond when a court contemplates dismissing 6 a claim on the merits, it is not so when the dismissal is for lack of subject matter jurisdiction." 7 Scholastic Entm't, Inc. v. Fox Entm't Group, Inc., 336 F.3d 982, 985 (9th Cir. 2003) (citations 8 omitted); see Fed. R. Civ. P. 12(h)(3) ("Whenever it appears by suggestion of the parties or 9 otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the 10 action."). 11 Because the Plaintiff is the Arizona Business Bank, and because it entered into the

12 contracts that are the subject matter of this complaint in Maricopa County, Arizona, it seems 13 likely that Plaintiff's principal place of business is Arizona. If this is the case, then the Court 14 has no jurisdiction over this complaint. Therefore, 15 IT IS HEREBY ORDERED that within ten (10) days from the date of this Order,

16 Plaintiff Arizona Business Bank shall file a memorandum with this Court setting forth all of 17 the branch locations of the Arizona Business Bank, and further setting forth any facts or 18 argument that would otherwise establish that Plaintiff's principal place of business is other 19 than in this state. Defendants may respond thereto in the time set forth by the rules. 20 21 22 23 24 25 26 27 28 -2DATED this 30th day of June, 2009.