Berman v. Modell

Filing 18

ORDER and ORDER to SHOW CAUSE signed by Magistrate Judge Allison Claire on 8/20/2013. Defendant's 9 Motion to Dismiss Hearing is CONTINUED to 10/9/2013 at 10:00 AM in Courtroom 26 (AC). Plaintiff shall SHOW CAUSE on or before 9/4/2013 why this action should not be dismissed for lack of diversity jurisdiction. Defendant may file a Reply to plaintiff's Response within 7 days of service. (Marciel, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN BERMAN,

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No. 2:13-cv-0565 TLN AC PS
Plaintiff,

v.

ORDER AND ORDER TO SHOW CAUSE

DAVID MODELL,
Defendant.

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Pro per plaintiff John Berman is proceeding in this action on a first amended complaint

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filed April 8, 2013. Plaintiff, a citizen of Nevada, see Am. Compl. ¶ 2, invokes this court’s

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diversity jurisdiction to bring suit against defendant David Modell, a citizen of Maryland, id. ¶ 1,

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on the following causes of action: conversion, abuse of process, breach of fiduciary duty, civil

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extortion, and intentional infliction of emotional distress. Plaintiff seeks $35,000 in actual

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damages, an immediate accounting, and punitive damages. Defendant has filed a motion to

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dismiss the amended complaint for lack of personal jurisdiction and improper venue. This motion

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is set for hearing on August 28, 2013.

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Under Federal Rule of Civil Procedure 12(h)(3), “[i]f the court determines at any time that

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it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3).

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“[A] court may raise the question of subject matter jurisdiction, sua sponte, at any time during the

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pendency of the action . . . .” Snell v. Cleveland, Inc., 316 F.3d 822, 826 (9th Cir. 2002).
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Federal courts are conferred with original jurisdiction over “all civil actions where the

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matter in controversy exceeds . . . $75,000 . . . and is between . . . citizens of a State and citizens

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or subjects of a foreign state.” 28 U.S.C. § 1332(a)(2). “Diversity jurisdiction under 28 U.S.C.

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§ 1332 requires complete diversity, i.e. every plaintiff must be diverse from every defendant.”

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Osborn v. Metropolitan Life Ins. Co., 341 F. Supp. 2d 1123, 1126 (E.D. Cal. 2004). A “natural

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person’s state citizenship is [ ] determined by her state of domicile, not her state of residence.”

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Kanter v. Warner–Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001). Plaintiff here has adequately

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pled that the parties are citizens of different states.

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It appears, however, that plaintiff fails to meet the amount-in-controversy requirement. In

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determining the amount in controversy, courts first look to the complaint. Lewis v. Verizon

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Comm., Inc., 627 F.3d 395, 399 (9th Cir. 2010). Generally, “the sum claimed by the plaintiff

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controls if the claim is apparently made in good faith.” Id. (citing St. Paul Mercury Indem. Co. v.

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Red Cab Co., 303 U.S. 283, 289 (1938)). The amount in controversy is determined as of the

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commencement of the action, i.e., when the complaint is filed. Hill v. Blind Industries and

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Services of Maryland, 179 F.3d 754, 757 (9th Cir. 1999). In this case, both the original and

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amended complaints seek damages in the amount of $35,000 and “punitive damages in an amount

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appropriate to punish the defendant and deter others from engaging in similar misconduct.” This

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appears to fall below the amount-in-controversy requirement.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The August 28, 2013 hearing on defendant’s motion to dismiss is continued to

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October 9, 2013 at 10:00 a.m. in courtroom #26.
2. Plaintiff shall show cause on or before September 4, 2013 why this action should not

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be dismissed for lack of diversity jurisdiction. Defendant may file a reply to plaintiff’s

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response within seven days of its service.

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DATED: August 20, 2013

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