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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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OTASHE GOLDEN, M.D.,

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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.

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The court has determined that the pending motion can be

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determined on the basis of the papers already filed, and

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accordingly the hearing on this motion, currently scheduled for

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July 28, 2014, is VACATED.

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Plaintiff has filed a First Amended Complaint (“Complaint”)

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alleging three California claims, with federal jurisdiction

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predicated solely upon diversity jurisdiction.

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court dismissed plaintiff’s original complaint sua sponte because

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it failed to allege plaintiff’s citizenship, and the citizenship
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ECF No. 14.

This

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of the defendants, depriving the court of the information it

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needed to determine whether diversity jurisdiction existed.

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No. 13.

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ECF

The amended Complaint once again does not plead plaintiff’s

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citizenship, even though the court, in its prior order,

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specifically identified this defect in the original complaint.

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Rather, the amended Complaint pleads, again, only that plaintiff

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is a “resident” of California.

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is insufficient to establish plaintiff’s citizenship.1

ECF No. 14 ¶ 3.

This allegation
Carolina

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Cas. Ins. Co. v. Team Equipment, Inc., 741 F.3d 1082, 1086 (9th

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Cir. 2014) (“The technical defects in this case include alleging

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diversity jurisdiction based on residency rather than

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citizenship, and failing to allege the principal place of

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business of a corporation”); Harris v. Bankers Life and Cas. Co.,

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425 F.3d 689, 695 (9th Cir. 2005) (“The face of Harris' initial

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pleading did not affirmatively reveal information to trigger

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removal based on diversity jurisdiction because the initial

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pleading only stated Brown's 1972 residency, not his

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citizenship”); Snell v. Cleveland, Inc., 316 F.3d 822, 824 (9th

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Cir. 2002) (per curiam) (“The complaint inadequately alleged the

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facts necessary to establish diversity jurisdiction” because “it

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alleged that Donald Snell resided in North Dakota, not that he

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was a citizen of that state”); Kanter v. Warner-Lambert Co., 265

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F.3d 853, 857 (9th Cir. 2001) (“Plaintiffs' complaint and

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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).

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Pfizer's notice of removal both state that Plaintiffs were

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‘residents’ of California. But the diversity jurisdiction

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statute, 28 U.S.C. § 1332, speaks of citizenship, not of

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residency”); Mantin v. Broadcast Music, Inc., 244 F.2d 204, 206

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(9th Cir. 1957) (“The complaint alleged that plaintiff was ‘a

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professional entertainer and composer residing in the County of

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Los Angeles, State of California.’

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regarded as an allegation that plaintiff was a citizen of

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California.

That, however, cannot be

Residence and citizenship are not the same thing”).

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In addition, although plaintiff now alleges the place of

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incorporation of defendant Sound Inpatient Physicians Medical

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Group, Inc. (“Sound”) – the only surviving defendant – she once

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again fails to allege Sound’s principal place of business, even

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though in its prior order, the court specifically identified that

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defect in the original complaint.2

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has its “principal office” in Tacoma Washington, but does not

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allege where it has is principal place of business.3

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Plaintiff alleges that Sound

The court is thus again deprived of the information it needs

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to determine whether diversity jurisdiction exists.

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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).
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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”).

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to properly allege the citizenship of the parties is a technical

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defect (that is, if the parties are, in fact, diverse), that

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plaintiff should normally be permitted to cure by amendment.

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Team Equipment, 741 F.3d at 1086 (alleging residence rather than

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citizenship in a diversity case is a “technical defect[]”, and

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“plaintiff should be permitted to amend a complaint to cure

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‘technical’ defects”).

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consecutive complaint in which plaintiff, who is represented by

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counsel, has failed to allege jurisdiction properly.

However, this is also the second

The

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Complaint will therefore be dismissed with leave to amend.

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However, plaintiff is cautioned that failure to properly allege

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jurisdiction in the next amended complaint will subject her to

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sanctions, including possible dismissal of the action with

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prejudice.

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Accordingly,

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1.

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The First Amended Complaint is hereby DISMISSED with

leave to amend within 30 days from the date of this order; and
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Defendant’s motion to dismiss (ECF No. 19), which does

not address the jurisdictional issue, is DENIED as moot.

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IT IS SO ORDERED.

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Dated:

July 22, 2014.

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