Cold Stone Creamery Incorporated v. Caperino et al

Filing 7

ORDER - IT IS ORDERED that the complaint 1 in this action is dismissed for lack of subject matter jurisdiction. IT IS FURTHER ORDERED that the plaintiff shall file an amended complaint properly stating a jurisdictional basis for this action no later than May 25, 2012. IT IS FURTHER ORDERED that the plaintiff shall immediately provide a copy of this order to any defendant already served with process. Signed by Senior Judge Paul G Rosenblatt on 5/16/12. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Cold Stone Creamery, Inc.,
Plaintiff,

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vs.
Cynthia and Frank Caperino,
Defendants.

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No. CV-12-1011-PHX-PGR

ORDER

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In a Petition to Compel Arbitration filed on May 15, 2012, the plaintiff

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alleges that the Court has diversity of citizenship jurisdiction over this action

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pursuant to 28 U.S.C. § 1332. Having reviewed the complaint, the Court finds

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that the citizenship-related jurisdictional allegations therein are insufficient as a

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matter of law to establish the existence of subject matter jurisdiction.1 The Court

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will therefore require the plaintiff to file an amended complaint properly stating a

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jurisdictional basis for this action. See 28 U.S.C. § 1653; see also, Smith v.

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McCullough, 270 U.S. 456, 459, 46 S.Ct. 338, 339 (1926) ("The established rule

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The Court notes that it is not making any ruling through this Order as to
whether the plaintiff has properly alleged that the amount in controversy meets
the requirement of 28 U.S.C. § 1332(a).

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is that a plaintiff, suing in federal court, must show in his pleading, affirmatively

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and distinctly, the existence of whatever is essential to federal jurisdiction, and, if

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he does not do so, the court, on having the defect called to its attention or on

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discovering the same, must dismiss the case, unless the defect be corrected by

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amendment.")

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The existence of diversity jurisdiction is not evident from the face of the

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complaint inasmuch as the complaint fails to properly allege the citizenship of the

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defendants, who are merely alleged to be “living in California.” This is insufficient

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as a matter of law because what is required is an allegation of citizenship, not of

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residency. See Steigleder v. McQuesten, 198 U.S. 141, 143, 25 S.Ct. 616, 617

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(1905) ("It has long been settled that residence and citizenship [are] wholly

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different things within the meaning of the Constitution and the laws defining and

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regulating the jurisdiction of the ... courts of the United States; and that a mere

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averment of residence in a particular state is not an averment of citizenship in

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that state for the purpose of jurisdiction."); accord, Kanter v. Warner-Lambert Co.,

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265 F.3d 853, 857-58 (9th Cir. 2001) (“Plaintiffs' complaint ... state[s] that Plaintiffs

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were 'residents' of California. But the diversity jurisdiction statute, 28 U.S.C.

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§ 1332, speaks of citizenship, not of residency. ... [The] failure to specify

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Plaintiffs' state of citizenship was fatal to [the] assertion of diversity jurisdiction.")

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The plaintiff must affirmatively set forth the citizenship of each individual

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defendant in the amended complaint.

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The plaintiff is advised that its failure to timely or sufficiently comply with

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this Order will result in the dismissal of this action for lack of subject matter

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jurisdiction. Therefore,

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IT IS ORDERED that the complaint in this action is dismissed for lack of

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subject matter jurisdiction.
IT IS FURTHER ORDERED that the plaintiff shall file an amended

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complaint properly stating a jurisdictional basis for this action no later than

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May 25, 2012.

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IT IS FURTHER ORDERED that the plaintiff shall immediately provide a
copy of this order to any defendant already served with process.
DATED this 16th day of May, 2012.

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