Kunz v. DJO, LLC et al

Filing 59

ORDER - IT IS ORDERED that the 17 Motion to dismiss is denied without prejudice. FURTHER ORDERED that Pla shall file an amended complaint within 20 days of the date of this Order properly pleading federal subject matter jurisdiction or this case wi ll be dismissed, without prejudice, for lack of federal subject matter jurisdiction. FURTHER ORDERED that, if Pla files an amended complaint, Dfts shall answer or otherwise respond to the amended complaint within 20 days of the date the amended compl aint is filed. IT IS FINALLY ORDERED that if a motion to dismiss is filed in response to the amended complaint, Pla shall respond to the motion within the time limit set in the Local Civil Rules for the District of Arizona; failure to timely respond will be deemed consent to the Court granting the motion. See Local Rule Civil 7.2(i). Signed by Judge James A Teilborg on 8/17/10. (SAT)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Joseph M. Kunz, Plaintiff, vs. DJO, LLC; DJO, Inc.; I-Flow Corp., Defendants.

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No. CV 10-1587-PHX-JAT ORDER

The Court has reviewed the record in this case and finds the status to be as follows. Defendants DJO, LLC and DJO, Inc. moved to dismiss on June 23, 2010 (Doc. 17). No response or reply to this motion was ever filed. This motion was noticed for hearing on September 24, 2010. This motion was not ruled on before the case was transferred to Arizona. Defendant I-Flow Corp. answered on July 26, 2010 (Doc. 39). Additionally, the Court has reviewed the jurisdictional allegations of the Complaint and finds that Plaintiff has failed to plead federal subject matter jurisdiction. Specifically, Defendant DJO, LLC is a limited liability company. To plead the citizenship of a limited liability company, Plaintiff must allege the citizenship of every member of the limited liability company. Johnson v. Columbia Properties Anchorage, L.P., 437 F.3d 894, 899 (9th Cir. 2006).

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Going forward, this Court must first assess jurisdiction.1 Then, if Plaintiff pleads jurisdiction, the Court can consider any motions. Accordingly, IT IS ORDERED that the motion to dismiss (Doc. 17) is denied without prejudice. IT IS FURTHER ORDERED that Plaintiff shall file an amended complaint within 20 days of the date of this Order properly pleading federal subject matter jurisdiction or this case will be dismissed, without prejudice, for lack of federal subject matter jurisdiction. IT IS FURTHER ORDERED that, if Plaintiff files an amended complaint, Defendants shall answer or otherwise respond to the amended complaint within 20 days of the date the amended complaint is filed. IT IS FINALLY ORDERED that if a motion to dismiss is filed in response to the amended complaint, Plaintiff shall respond to the motion within the time limit set in the Local Civil Rules for the District of Arizona; failure to timely respond will be deemed consent to the Court granting the motion. See Local Rule Civil 7.2(i). DATED this 17th day of August, 2010.

"Inquiring whether the court has jurisdiction is a federal judge's first duty in every case." Belleville Catering Co. v. Champaign Market Place, L.L.C., 350 F.3d 691, 693 (7th Cir. 2003). -2-

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