Wells Fargo Bank NA v. Cynthia M Seput

Filing 16

MINUTES (IN CHAMBERS) ORDER DISMISSING ACTION FOR LACK OF SUBJECT MATTER JURISDICTION by Judge John F. Walter. (Made JS-6. Case Terminated.) (jp)

JS-6

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES -- GENERAL
Case No.

CV 12-47-JFW (AJWx)

Title:

Wells Fargo Bank, N.A. -v- Cynthia M. Seput

Date: April 27, 2012

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 January 4, 2012, Plaintiff Wells Fargo Bank, N.A. (“Plaintiff”) filed a Complaint in this
Court against Defendant Cynthia M. Seput (“Defendant”), alleging that the Court had subject
matter jurisdiction over the action pursuant to 28 U.S.C. §§ 1332.
Plaintiff has 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 its Complaint, Plaintiff alleges that it is a resident of South Dakota and that Defendant 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, Plaintiff’s
allegations are insufficient to establish its or Defendant’s citizenship.
In addition, Plaintiff alleges Defendant’s residency on 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

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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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