Hung et al v. Tribal Technologies et al

Filing 56

ORDER DENYING LEAVE TO FILE FIRST AMENDED COMPLAINT by Judge William Alsup [denying 39 Motion to Amend/Correct]. (whasec, COURT STAFF) (Filed on 3/27/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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For the Northern District of California

United States District Court

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CINDY HUNG (deceased), LI CHING CHU,
and ROBERT CHING LIANG HUNG,
individually and as successors to Cindy Hung
(deceased),
Plaintiffs,

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No. C 11-04990 WHA

ORDER DENYING LEAVE
TO FILE FIRST AMENDED
COMPLAINT

v.

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TRIBAL TECHNOLOGIES,
GLENBOROUGH 400 ECR, LLC,
a California Limited Liability Company,
and Does 1 though 3, inclusive,

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Defendants.

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/

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INTRODUCTION
In this wrongful death action, plaintiffs move for leave to file an amended complaint.

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Because their proposed first amended complaint fails to cure the defects in the initial complaint,

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plaintiffs’ motion is DENIED.

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STATEMENT

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Plaintiff Cindy Hung (deceased) and plaintiffs Robert Ching Liang Hung and Li Ching

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Chu, individually and as successors in interest to Cindy Hung, filed this action in federal court

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on October 11, 2011. Plaintiffs named as defendants Tribal Technologies, employer of decedent,

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Glenborough 400 ECR, LLC, operator of the “breeze way” area of the building where decedent’s

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body was found, and Does 1 through 100, inclusive, the individuals who allegedly beat decedent

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to death. The complaint alleged eight state claims for relief: (1) assault; (2) battery;

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(3) intentional infliction of emotional distress; (4) negligence; (5) negligent supervision

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and retention; (6) premise liability; (7) wrongful death; and (8) survival action.

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Less than a week before filing this action, plaintiffs also filed an action in the San Mateo
County Superior Court, alleging the same state claims for relief.
On January 6, 2012, an order issued granting defendants’ motion to dismiss for lack

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of subject-matter jurisdiction. The order granted defendants’ motion for two reasons:

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(1) “plaintiffs d[id] not allege the citizenship of defendant Glenborough 400 ECR, LLC’s

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owner/members,” and (2) the “inclusion of Doe defendants destroy[ed] the complete diversity

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For the Northern District of California

United States District Court

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requirement.” Plaintiffs were given 21 calendar days to seek leave to file an amended complaint.
Plaintiffs timely filed a proposed first amended complaint. In the amended complaint,

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Does 1 through 100 have been changed to Does 1 through 3. Also, defendants Does have been

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removed from the premise liability claim so that Glenborough remains as the only defendant

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in that cause of action, and a new claim for landlord’s failure to protect has been made against

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only Glenborough. Defendants Tribal Technologies and Glenborough filed separate oppositions.

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Plaintiffs did not file a reply.

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At the hearing on March 22, plaintiffs’ counsel, who is decedent’s sister, stated that

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she has been assigned as personal administrator of decedent’s estate. She claimed that she

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is Canadian, lives in California, has a home in Canada, and does not have full-time employment

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in either Canada or California.

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Plaintiffs’ counsel also stated at the hearing that she does not do trial work. This Court

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explained to plaintiffs’ counsel that it was doing everything it could to legitimately keep this suit

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in federal court. But because plaintiffs’ counsel appeared not to understand subject-matter

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jurisdiction, this Court suggested that she seek the help of a lawyer experienced in federal

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litigation.

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ANALYSIS

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Under FRCP 15(a), leave to amend a complaint shall be freely given when justice

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so requires. This standard is applied liberally. However, in deciding whether to permit
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amendment, a court may consider factors “such as undue delay . . . [and] repeated failure to cure

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deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue

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of allowance of the amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962). Thus, leave

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to amend may be denied if the proposed amendment is futile or would be subject to dismissal.

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Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991).

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Plaintiffs fail for several reasons to properly amend their complaint.

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1.

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Plaintiffs only bring state law claims, and allege that the amount in controversy exceeds

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DEFENDANTS DOES.

$75,000, so they must show complete diversity of citizenship to establish federal jurisdiction.
28 U.S.C. 1332(a). The order granting defendants’ motion to dismiss for lack of subject-matter

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For the Northern District of California

United States District Court

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jurisdiction held that the presence of defendants Does in the complaint destroyed diversity

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jurisdiction. Reducing the number of Doe defendants from 100 to three does not cure this defect,

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as a single unknown defendant is enough to destroy diversity. Molnar v. National Broadcasting,

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Co., et al., 231 F.2d 684, 685 (9th Cir. 1956). Plaintiffs must properly name defendants Does

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or remove them from this suit in order to survive a motion to dismiss.

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2.

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The order granting defendants’ motion to dismiss for lack of subject-matter jurisdiction

DEFENDANT GLENBOROUGH.

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held that plaintiffs had not properly alleged the citizenship of defendant Glenborough.

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Removing defendants Does from the premise liability cause of action and adding a cause of

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action against defendant Glenborough for landlord’s failure to protect does not cure this

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deficiency because defendant Glenborough’s citizenship still has not been alleged. For purposes

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of diversity jurisdiction, a limited liability company is a citizen of every state of which its

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owners/members are citizens. Johnson v. Columbia Properties Anchorage, LP, et al., 437 F.3d

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894, 899 (9th Cir. 2006). Plaintiffs must allege Glenborough’s citizenship to survive a motion

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to dismiss.
PLAINTIFFS’ STANDING AND CITIZENSHIP.

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3.

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Any action in federal court must be brought in the name of the real party in interest.

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Fed. R. Civ. P. 17(a). Plaintiff decedent cannot enforce a claim and therefore is not the real
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party in interest. However, an executor or administrator may sue on behalf of a decedent’s

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estate. Ibid. Plaintiffs’ counsel stated at the hearing that she is the administrator of plaintiff

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decedent’s estate. In order to fulfill the diversity of citizenship requirement under Section

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1332(a), plaintiffs’ counsel must allege her citizenship. If plaintiffs’ counsel is a non-citizen

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permanent resident of the United States, she must allege her domicile status. 28 U.S.C.

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1332(a)(2).

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CONCLUSION
For the foregoing reasons, plaintiffs’ motion for leave to file a first amended complaint
is DENIED. Plaintiffs may seek leave to amend the complaint and will have TWENTY-ONE
CALENDAR DAYS from

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For the Northern District of California

United States District Court

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the date of this order to file a motion, noticed on a 35-day track, for leave

to file an amended complaint. Plaintiffs must append to their motion a proposed amended

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complaint. The motion should clearly explain how the amendments to the complaint cure

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the defects identified herein. This order notes that plaintiffs’ counsel has a state court action

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co-pending, evidently hedging as to whether she can plead proper subject-matter jurisdiction.

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IT IS SO ORDERED.

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Dated: March 27, 2012.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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