Brian Cotter et al v. Quatrro Inc

Filing 6

MINUTE ORDER IN CHAMBERS by Judge John F. Walter:, ORDER DISMISSING CASE FOR LACK OF SUBJECT MATTER JURISDICTION by Judge John F. Walter, Case Terminated. Made JS-6. (se)

PRIORITY SEND

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

JS-6

CIVIL MINUTES -- GENERAL
Case No.

CV 11-9705-JFW (JCx)

Title:

Brian Cotter, et al. -v- Quatrro, Inc.

Date: December 6, 2011

PRESENT:
HONORABLE JOHN F. WALTER, UNITED STATES DISTRICT JUDGE
Shannon Reilly
Courtroom Deputy

None Present
Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFFS:
None
PROCEEDINGS (IN CHAMBERS):

ATTORNEYS PRESENT FOR DEFENDANTS:
None

ORDER DISMISSING ACTION FOR LACK OF
SUBJECT MATTER JURISDICTION

On November 22, 2011, Plaintiffs Brian Cotter and PCVisor LLC (collectively, “Plaintiffs”)
filed a Complaint in this Court against Defendant Quatrro Inc. (“Defendant”), alleging that the Court
had subject matter jurisdiction over the action pursuant to 28 U.S.C. § 1332.
Plaintiffs have not adequately alleged the facts essential for the subject matter jurisdiction of
this Court. Tosco Corp. v. Communities for a Better Environment, 236 F.3d 495, 499 (9th Cir.
2001) (quoting Smith v. McCullough, 270 U.S. 456, 459 (1926)) (“‘A plaintiff suing in a federal court
must show in his pleading, affirmatively and distinctly, the existence of whatever is essential to
federal jurisdiction . . . .’”). Diversity jurisdiction founded under 28 U.S.C. § 1332(a) requires that
(1) all plaintiffs be of different citizenship than all defendants, and (2) the amount in controversy
exceed $75,000. See 28 U.S.C. § 1332.
In their Complaint, Plaintiffs allege that Brian Cotter is a resident of California. However,
“the diversity jurisdiction statute, 28 U.S.C. § 1332, speaks of citizenship, not of residency.” Kanter
v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001). To be a citizen of a state, a natural
person must be a citizen of the United States and be domiciled in a particular state. Id. Persons
are domiciled in the places they reside with the intent to remain or to which they intend to return.
Id. “A person residing in a given state is not necessarily domiciled there, and thus is not
necessarily a citizen of that state.” Id. Therefore, Plaintiffs’ allegation is insufficient to establish
Cotter’s citizenship.
In addition, a limited liability company is a citizen of every state of which its members are
citizens. See, e.g., Johnson v. Columbia Properties Anchorage, LP, 437 F.3d 894, 899 (9th Cir.
2006) (“[L]ike a partnership, an LLC is a citizen of every state of which its owners/members are
citizens.”). However, Plaintiffs have failed to allege the citizenship of any of the members of

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PCVisor LLC.
Moreover, Plaintiffs allege Defendant’s citizenship “[u]pon information and belief.” However,
jurisdictional allegations based on information and belief are insufficient to confer jurisdiction.
Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001) (“Absent unusual circumstances,
a party seeking to invoke diversity jurisdiction should be able to allege affirmatively the actual
citizenship of the relevant parties.”); America’s Best Inns, Inc., 980 F.2d at 1074 (holding that
allegations based on “to the best of my knowledge and belief” are insufficient); see, also, Bradford
v. Mitchell Bros. Truck Lines, 217 F.Supp. 525, 527 (N.D. Cal. 1963). As the Supreme Court long
ago held, “a plaintiff, suing in federal court, must show in his pleading, affirmatively and distinctly,
the existence of whatever is essential to federal jurisdiction.” Smith, 270 U.S. at 459 (1926);
accord, Rilling v. Burlington Northern Railroad Co., 909 F.2d 399, 400 (9th Cir. 1990).

Federal Rule of Civil Procedure 12(h)(3) specifically states that “[i]f the court determines at
any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed. R. Civ. P.
12(h)(3). Pursuant to Rule 12(h)(3), “a court may raise the question of subject matter jurisdiction,
sua sponte, at any time during the pendency of the action, even on appeal.” Snell v. Cleveland,
Inc., 316 F.3d 822, 826 (9th Cir. 2002); see also Emerich v. Touche Ross & Co., 846 F.2d 1190,
1194 n. 2 (9th Cir. 1988) (noting that "[i]t is elementary that the subject matter jurisdiction of the
district court is not a waivable matter and may be raised at anytime by one of the parties, by
motion or in the responsive pleadings, or sua sponte by the trial or reviewing court").
Accordingly, the Court hereby DISMISSES this action for lack of subject matter jurisdiction.
IT IS SO ORDERED.

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