Golden v. Sound Inpatient Physicians Medical Group, Inc. et al

Filing 32

ORDER signed by Judge Lawrence K. Karlton on 7/22/2014. The Motion Hearing scheduled for 7/28/2014 is VACATED. The 14 First Amended Complaint is hereby DISMISSED with leave to amend within 30 days from date of Order. Defendant's 19 Motion to Dismiss, which does not address jurisdictional issue, is DENIED as MOOT. (Marciel, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 OTASHE GOLDEN, M.D., 12 13 14 15 16 17 18 No. CIV. S-14-497 LKK/EFB Plaintiff, v. ORDER SOUND INPATIENT PHYSICIANS MEDICAL GROUP, INC.; DAMERON HOSPITAL ASSOCIATION, a California Non-Profit Association; NICHOLAS ARISMENDI, an individual and DOES 1-10, inclusive, Defendants. 19 20 The court has determined that the pending motion can be 21 determined on the basis of the papers already filed, and 22 accordingly the hearing on this motion, currently scheduled for 23 July 28, 2014, is VACATED. 24 Plaintiff has filed a First Amended Complaint (“Complaint”) 25 alleging three California claims, with federal jurisdiction 26 predicated solely upon diversity jurisdiction. 27 court dismissed plaintiff’s original complaint sua sponte because 28 it failed to allege plaintiff’s citizenship, and the citizenship 1 ECF No. 14. This 1 of the defendants, depriving the court of the information it 2 needed to determine whether diversity jurisdiction existed. 3 No. 13. 4 ECF The amended Complaint once again does not plead plaintiff’s 5 citizenship, even though the court, in its prior order, 6 specifically identified this defect in the original complaint. 7 Rather, the amended Complaint pleads, again, only that plaintiff 8 is a “resident” of California. 9 is insufficient to establish plaintiff’s citizenship.1 ECF No. 14 ¶ 3. This allegation Carolina 10 Cas. Ins. Co. v. Team Equipment, Inc., 741 F.3d 1082, 1086 (9th 11 Cir. 2014) (“The technical defects in this case include alleging 12 diversity jurisdiction based on residency rather than 13 citizenship, and failing to allege the principal place of 14 business of a corporation”); Harris v. Bankers Life and Cas. Co., 15 425 F.3d 689, 695 (9th Cir. 2005) (“The face of Harris' initial 16 pleading did not affirmatively reveal information to trigger 17 removal based on diversity jurisdiction because the initial 18 pleading only stated Brown's 1972 residency, not his 19 citizenship”); Snell v. Cleveland, Inc., 316 F.3d 822, 824 (9th 20 Cir. 2002) (per curiam) (“The complaint inadequately alleged the 21 facts necessary to establish diversity jurisdiction” because “it 22 alleged that Donald Snell resided in North Dakota, not that he 23 was a citizen of that state”); Kanter v. Warner-Lambert Co., 265 24 F.3d 853, 857 (9th Cir. 2001) (“Plaintiffs' complaint and 25 1 26 27 For these purposes, diversity jurisdiction exists between “citizens of different States,” and between “citizens of a State and citizens or subjects of a foreign state.” 28 U.S.C. § 1332(a)(1) & (2). 28 2 1 Pfizer's notice of removal both state that Plaintiffs were 2 ‘residents’ of California. But the diversity jurisdiction 3 statute, 28 U.S.C. § 1332, speaks of citizenship, not of 4 residency”); Mantin v. Broadcast Music, Inc., 244 F.2d 204, 206 5 (9th Cir. 1957) (“The complaint alleged that plaintiff was ‘a 6 professional entertainer and composer residing in the County of 7 Los Angeles, State of California.’ 8 regarded as an allegation that plaintiff was a citizen of 9 California. That, however, cannot be Residence and citizenship are not the same thing”). 10 In addition, although plaintiff now alleges the place of 11 incorporation of defendant Sound Inpatient Physicians Medical 12 Group, Inc. (“Sound”) – the only surviving defendant – she once 13 again fails to allege Sound’s principal place of business, even 14 though in its prior order, the court specifically identified that 15 defect in the original complaint.2 16 has its “principal office” in Tacoma Washington, but does not 17 allege where it has is principal place of business.3 18 Plaintiff alleges that Sound The court is thus again deprived of the information it needs 19 to determine whether diversity jurisdiction exists. 20 2 21 22 23 24 25 26 27 The failure A corporation is a citizen “of every State and foreign state by which it has been incorporated and of the State or foreign state where it has its principal place of business.” 28 U.S.C. § 1332(c)(1) (emphasis added). 3 The complaint does not explain what legal relevance there is, for diversity purposes, to the location of a corporation’s “principal office.” However, the court notes that the location of the “main office” is pertinent to diversity jurisdiction for a national bank, not a corporation. See 28 U.S.C. § 1348; Wachovia Bank v. Schmidt, 546 U.S. 303, 307 (2006) (“we hold that a national bank, for § 1348 purposes, is a citizen of the State in which its main office, as set forth in its articles of association, is located”). 28 3 1 to properly allege the citizenship of the parties is a technical 2 defect (that is, if the parties are, in fact, diverse), that 3 plaintiff should normally be permitted to cure by amendment. 4 Team Equipment, 741 F.3d at 1086 (alleging residence rather than 5 citizenship in a diversity case is a “technical defect[]”, and 6 “plaintiff should be permitted to amend a complaint to cure 7 ‘technical’ defects”). 8 consecutive complaint in which plaintiff, who is represented by 9 counsel, has failed to allege jurisdiction properly. However, this is also the second The 10 Complaint will therefore be dismissed with leave to amend. 11 However, plaintiff is cautioned that failure to properly allege 12 jurisdiction in the next amended complaint will subject her to 13 sanctions, including possible dismissal of the action with 14 prejudice. 15 Accordingly, 16 1. 17 18 19 The First Amended Complaint is hereby DISMISSED with leave to amend within 30 days from the date of this order; and 2. Defendant’s motion to dismiss (ECF No. 19), which does not address the jurisdictional issue, is DENIED as moot. 20 IT IS SO ORDERED. 21 Dated: July 22, 2014. 22 23 24 25 26 27 28 4

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