Fabozzi v. StubHub, Inc.

Filing 19

ORDER DIRECTING PLAINTIFF TO SHOW CAUSE WHY COMPLAINT SHOULD NOT BE DISMISSED FOR LACK OF SUBJECT MATTER JURISDICTION. Fabozzi is ordered to show cause, in writing and no later than February 10, 2012, why the action should not be dismissed for lack of subject matter jurisdiction. Defendant shall file any response thereto no later than February 17, 2012. Signed by Judge Maxine M. Chesney on January 26, 2012. (mmclc2, COURT STAFF) (Filed on 1/26/2012)

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IN THE UNITED STATES DISTRICT COURT

For the Northern District of California

United States District Court

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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JOSEPH FABOZZI, on behalf of himself and
those similarly situated,

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ORDER DIRECTING PLAINTIFF TO
SHOW CAUSE WHY COMPLAINT
SHOULD NOT BE DISMISSED FOR
LACK OF SUBJECT MATTER
JURISDICTION

Plaintiff,

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v.

STUBHUB, INC.,
Defendant.

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No. C 11-6387 MMC

/

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Before the Court is plaintiff Joseph Fabozzi’s (“Fabozzi”) complaint, filed December

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16, 2011 (“complaint”). For the reasons set forth below, Fabozzi is hereby ORDERED TO

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SHOW CAUSE why his complaint should not be dismissed for lack of subject matter

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jurisdiction.

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BACKGROUND
In his complaint, Fabozzi asserts a claim under California Business and Professions

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Code § 22500, et seq., and a claim under California’s Unfair Competition Law (“UCL”),

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Business and Professions Code § 17200, et seq. (See Compl. ¶ 1.) Fabozzi asserts

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federal diversity jurisdiction under the Class Action Fairness Act of 2005 (“CAFA”), 28

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U.S.C. § 1332(d). (See Compl. ¶ 2). In support thereof, Fabozzi alleges that the proposed

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class of claimants is comprised of “[a]ll persons, exclusive of the [d]efendant and its

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employees, who purchased a ticket(s) on StubHub.com from July 25, 2007 through such

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time in the future when the effects of the [d]efendants’ violation of [California Business and

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Professions Code] § 22502.2 and the UCL . . . have ceased and who were denied entry to

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the event because the ticket(s) were not valid for entry” (see Compl. ¶ 32); that defendant

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is a Delaware corporation with a principal place of business in San Francisco, California

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(see id. ¶ 5); that “at least some members of the proposed class have different citizenship

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from some [d]efendants” (see id. ¶ 2); that “[p]laintiff believes that the Class encompass[es]

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thousands of individuals” (see id. ¶ 33); and that “[b]ased on the [d]efendant’s revenue and

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the damages available pursuant to California law, the [p]laintiff believes the amount in

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controversy exceeds $5 million.” (See id. ¶ 34.)
DISCUSSION

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The issue of subject matter jurisdiction may be raised unilaterally by the district court

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at any stage of the proceedings. See, e.g., Snell v. Cleveland, 316 F.3d 822, 826 (9th Cir.

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2002) (“Federal Rule of Civil Procedure 12(h)(3) provides that a court may raise the

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question of subject matter jurisdiction, sua sponte, at any time during the pendency of the

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action . . . .”). If the court determines it lacks subject matter jurisdiction, the court must

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dismiss the action. Fed. R. Civ. P. 12(h)(3).

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The proponent of federal jurisdiction bears the burden of establishing all

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jurisdictional prerequisites. See Abrego Abrego v. The Dow Chem. Co., 443 F.3d 676, 685

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(9th Cir. 2006) (holding CAFA did not change rule requiring proponent of federal jurisdiction

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to establish basis therefor). To establish federal jurisdiction under CAFA, Fabozzi, as the

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proponent of jurisdiction, must plead facts sufficient to demonstrate that the aggregate

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amount in controversy exceeds $5,000,000, that class membership numbers at least one

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hundred, and that at least one class member is diverse from at least one defendant. See

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28 U.S.C. § 1332(d)(2), (d)(5).

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Here, Fabozzi alleges no facts to support his “belief” that the amount in controversy
exceeds $5 million or that class membership numbers at least one hundred. In the
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absence of such factual allegations, the Court may not exercise jurisdiction; in particular,

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the Court may not do so based on speculation as to either requirement. See Lowdermilk v.

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U.S. Bank Nat'l Ass'n, 479 F.3d 994, 1002 (9th Cir. 2007) (noting court was “left . . . to

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speculate as to the size of the class [and] the amount of unpaid wages owed”; holding “we

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cannot base our jurisdiction on . . . speculation and conjecture”).

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Accordingly, Fabozzi is hereby ORDERED TO SHOW CAUSE, in writing and no

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later than February 10, 2012, why the above-titled action should not be dismissed for lack

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of subject matter jurisdiction. Defendant shall file any response thereto no later than

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February 17, 2012.

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IT IS SO ORDERED.

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Dated: January 26, 2012
MAXINE M. CHESNEY
United States District Judge

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