Electric Insurance Company v. Crane et al

Filing 4

ORDER that 1 Complaint is dismissed for lack of subject matter jurisdiction. Plaintiff shall file an amended complaint properly stating a jurisdictional basis for this action no later than August 5, 2013. Plaintiff shall serve a copy of this Order on any defendant already served with process. Signed by Senior Judge Paul G Rosenblatt on 7/23/13. (LSP)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 Electric Insurance Company, Plaintiff, 11 12 13 14 vs. Michael Lee Crane, et al., Defendants. 15 ) ) ) ) ) ) ) ) ) ) ) No. CV-13-01395-PHX-PGR ORDER 16 In a complaint filed on July 11, 2013, the plaintiff alleges that the Court has 17 diversity of citizenship jurisdiction over this declaratory judgment action pursuant to 18 28 U.S.C. § 1332. 19 jurisdictional allegations therein are insufficient as a matter of law to establish the 20 existence of subject matter jurisdiction. The Court will therefore require the plaintiff 21 to file an amended complaint properly stating a jurisdictional basis for this action. 22 See 28 U.S.C. § 1653; see also, Smith v. McCullough, 270 U.S. 456, 459, 46 S.Ct. 23 338, 339 (1926) ("The established rule is that a plaintiff, suing in federal court, must 24 show in his pleading, affirmatively and distinctly, the existence of whatever is 25 essential to federal jurisdiction, and, if he does not do so, the court, on having the 26 defect called to its attention or on discovering the same, must dismiss the case, Having reviewed the complaint, the Court finds that the 1 unless the defect be corrected by amendment.") 2 The jurisdictional allegations concerning the defendants are that Michael 3 Crane is currently incarcerated in the Maricopa County jail and that his last known 4 residence was in Mesa, Arizona and that Jessica Gaudet, Heidi Gaudet and Melissa 5 Gaudet are all residents of Clark County, Nevada. These allegations are facially 6 deficient because it is black letter law that an allegation of residency does not suffice 7 for purposes of § 1332. See Steigleder v. McQuesten, 198 U.S. 141, 143, 25 S.Ct. 8 616, 617 (1905) ("It has long been settled that residence and citizenship [are] wholly 9 different things within the meaning of the Constitution and the laws defining and 10 regulating the jurisdiction of the ... courts of the United States; and that a mere 11 averment of residence in a particular state is not an averment of citizenship in that 12 state for the purpose of jurisdiction."); accord, Kanter v. Warner-Lambert Co., 265 13 F.3d 853, 857-58 (9th Cir. 2001) (Plaintiffs' complaint ... state[s] that Plaintiffs were 14 'residents' of California. But the diversity jurisdiction statute, 28 U.S.C. § 1332, 15 speaks of citizenship, not of residency. ... [The] failure to specify Plaintiffs' state of 16 citizenship was fatal to [the] assertion of diversity jurisdiction.") 17 The plaintiff is advised that its failure to timely file an amended complaint that 18 cures the pleading deficiency noted in this Order shall result in the dismissal of this 19 action for lack of subject matter jurisdiction.1 Therefore, 20 21 22 IT IS ORDERED that the complaint is dismissed for lack of subject matter jurisdiction. IT IS FURTHER ORDERED that the plaintiff shall file an amended complaint 23 1 24 25 26 The plaintiff is advised that the complete capitalization of a party’s name in the caption of any document filed with the Court violates LRCiv 7.1(a)(3) unless that party’s name is completely capitalized in its normal use. The caption of the amended complaint must comply with the local rule. -2- 1 properly stating a jurisdictional basis for this action no later than August 5, 2013. 2 IT IS FURTHER ORDERED that the plaintiff shall serve a copy of this Order 3 on any defendant already served with process. 4 DATED this 23rd day of July, 2013. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 -3-

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