Ken Dilley v. C.R. Bard Inc. et al

Filing 9

ORDER REMANDING CASE TO LOS ANGELES COUNTY SUPERIOR COURT by Judge Otis D. Wright, II. cc: order, docket, remand letter to Los Angeles Superior Court, South District, Long Beach, Case number NC058718 Case Terminated. Made JS-6 .(Attachments: # 1 remand letter) (lc) Modified on 1/17/2014 .(lc).

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JS-6

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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KEN DILLEY,

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v.

Case No. 2:14-cv-00258-ODW(ASx)
Plaintiff,

C.R. BARD INC.; DAVOL INC.; DOES
1–100, inclusive,

ORDER REMANDING CASE TO
LOS ANGELES COUNTY
SUPERIOR COURT

Defendants.

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On January 10, 2014, Defendants C.R. Bard Inc. and Davol Inc. removed this

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case to this Court, ostensibly invoking diversity jurisdiction under 28 U.S.C. § 1332.

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But after considering Defendants’ Notice of Removal, the Court finds that Defendants

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have failed to adequately allege Plaintiff Ken Dilley’s citizenship sufficient to

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establish diversity jurisdiction. The Court therefore REMANDS this case to Los

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Angeles County Superior Court, case number NC058718.

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Federal courts are courts of limited jurisdiction, having subject-matter

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jurisdiction only over matters authorized by the Constitution and Congress. U.S.

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Const. art. III, § 2, cl. 1; e.g., Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.

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375, 377 (1994). A defendant may only remove a suit filed in state court if the federal

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court would have had original jurisdiction over the suit. 28 U.S.C. § 1441(a). But

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courts strictly construe the removal statute against removal jurisdiction, and federal

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“jurisdiction must be rejected if there is any doubt as to the right of removal in the

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first instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). The party

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seeking removal bears the burden of establishing federal jurisdiction. Durham v.

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Lockheed Martin Corp., 445 F.3d 1247, 1252 (9th Cir. 2006) (citing Gaus, 980 F.2d at

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566).

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Federal courts have original jurisdiction where an action presents a federal

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question under 28 U.S.C. § 1331 or diversity of citizenship under 28 U.S.C. § 1332.

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To exercise diversity jurisdiction, a federal court must find complete diversity of

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citizenship among the adverse parties, and the amount in controversy must exceed

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$75,000, usually exclusive of interest and costs. 28 U.S.C. § 1332(a). For complete-

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diversity purposes, a natural person’s citizenship is “determined by her state of

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domicile, not her state of residence.” Kantor v. Warner-Lambert Co., 265 F.3d 853,

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857 (9th Cir. 2001); see also Jeffcott v. Donovan, 135 F.2d 213, 214 (9th Cir. 1943)

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(“Diversity of citizenship as a basis for the jurisdiction of a cause in the District Court

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of the United States is not dependent upon the residence of any of the parties, but

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upon their citizenship.”).

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In its Notice of Removal, Defendants allege that “Plaintiff is a citizen and

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resident of the State of California. See Complaint ¶ 2.” (Not. of Removal ¶ 11; see

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also Ex. A, ¶ 2.) But Plaintiff did not admit in his Complaint that is a California

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citizen; rather, he admits that he is “a resident of the County of Orange, State of

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California.”

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residence may be prima facie evidence of that party’s domicile when an action is

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brought in federal court in the first instance, see State Farm Mut. Auto. Ins. v. Dyer,

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19 F.3d 514, 520 (10th Cir. 1994), mere residence allegations do not suffice to

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establish citizenship on removal in light of the strong presumption against removal

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jurisdiction. See Kanter, 265 F.3d at 857; Gaus, 980 F.2d at 567.

(Not. of Removal Ex. A, ¶ 2 (emphasis added).)

While a party’s

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Neither do Defendants cite any objective facts to establish that Dilley is a

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California citizen, such as “voting registration and voting practices, location of

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personal and real property, location of brokerage and bank accounts, location of

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spouse and family, membership in unions and other organizations, place of

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employment or business, driver’s license and automobile registration, and payment of

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taxes.” Lew v. Moss, 797 F.2d 747, 750 (9th Cir. 1986).

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Left with just a bare, inadequate residency allegation, the Court finds that

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Defendants have not competently established that this Court has diversity jurisdiction

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over this case. The Court therefore REMANDS this case to the Los Angeles County

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Superior Court, case number NC058718. See Fed. R. Civ. P. 12(h)(3) (“If the court

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determines at any time that it lacks subject-matter jurisdiction, the court must dismiss

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the action.”). The Clerk of Court shall close this case.

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IT IS SO ORDERED.

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January 17, 2014

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____________________________________
OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE

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cc: order, docket, remand letter to Los Angeles Superior Court,
South District, Long Beach, No. NC058718

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