Cuviello, et al v. Circus America, Inc et al

Filing 24

CASE MANAGEMENT SCHEDULING ORDER and ORDER TO SHOW CAUSE RE: DISMISSAL: Case Management Statement due by 5/15/2013. Further Case Management Conference set for 5/22/2013 10:00 AM in Courtroom A, 15th Floor, San Francisco. Amend Complaint or Show Cause Response due by 4/24/2013. Signed by Judge Nathanael Cousins on 4/1/2013. (Attachments: # 1 Certificate/Proof of Service)(knm, COURT STAFF) (Filed on 4/1/2013)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN FRANCISCO DIVISION 11 12 JOSEPH CUVIELLO and MARK ENNIS, Plaintiffs, 13 14 v. Case No. 12-cv-04618 NC CASE MANAGEMENT SCHEDULING ORDER AND ORDER TO SHOW CAUSE RE: DISMISSAL CIRCUS AMERICA, INC., JAVIER 15 RAMON MARTINEZ, and JOHN PELTON, 16 Defendants. 17 18 The parties attended a case management conference on March 27, 2013. After 19 considering the joint case management statement submitted by the parties, IT IS HEREBY 20 ORDERED THAT: 21 1. SUBJECT MATTER JURISDICTION. As the Court noted at the case 22 management conference, the complaint does not appear to contain sufficient allegations to 23 establish the existence of federal subject matter jurisdiction in this action. Federal courts 24 are courts of limited jurisdiction and are presumptively without jurisdiction. Kokkonen v. 25 Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A federal court may dismiss an 26 action on its own motion if it finds that it lacks subject matter jurisdiction over the action. 27 Fiedler v. Clark, 714 F.2d 77, 78-79 (9th Cir. 1983); see also Fed. R. Civ. P. 12(h)(3) (“If 28 the court determines at any time that it lacks subject-matter jurisdiction, the court must Case No. 12-cv-04618 NC CASE MANAGEMENT SCHEDULING ORDER AND ORDER TO SHOW CAUSE 1 dismiss the action.”). 2 In most cases, original federal subject jurisdiction may be premised on two grounds: 3 (1) diversity jurisdiction, or (2) federal question jurisdiction. District courts have diversity 4 jurisdiction over “all civil actions where the matter in controversy exceeds the sum or value 5 of $75,000, exclusive of interest and costs” and the action is between: “(1) citizens of 6 different States; (2) citizens of a State and citizens or subjects of a foreign state . . . ; (3) 7 citizens of different States and in which citizens or subjects of a foreign state are additional 8 parties; and (4) a foreign state . . . as plaintiff and citizen of a State or of different States.” 9 28 U.S.C. § 1332. District courts also have federal question jurisdiction over “all civil 10 actions arising under the Constitution, laws, or treaties of the United States.” 11 Id. § 1331. 12 Here, plaintiffs claim violations of the California Constitution, article I, § 2(a), 13 California Civil Code §§ 43, 51.7, 52.1, and 1708, and common law torts of assault and 14 battery. Dkt. Nos. 1; 15 at 2:15-21. Because all of plaintiffs’ claims arise under California 15 law, there appears to be no basis for federal question jurisdiction. 16 As indicated by the complaint and the parties’ joint case management statement, 17 plaintiffs contend that federal subject matter jurisdiction is proper based on diversity 18 pursuant to 28 U.S.C. § 1332. Dkt. Nos. 1; 15 at 2:1-4. The essential elements of diversity 19 jurisdiction must be affirmatively alleged in the pleadings. See Bautista v. Pan American 20 World Airlines, Inc., 828 F.2d 546, 552 (9th Cir. 1987) (citations omitted); Kanter v. 21 Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001) (“Absent unusual circumstances, a 22 party seeking to invoke diversity jurisdiction should be able to allege affirmatively the 23 actual citizenship of the relevant parties.”). Here, the essential elements of diversity 24 jurisdiction appear to be lacking. 25 First, the complaint fails to allege plaintiffs’ citizenship. The complaint alleges that 26 both plaintiffs are individuals who reside in California. Dkt. No. 1 ¶¶ 4-5. However, 27 allegations of residence are insufficient for purposes of establishing jurisdiction under 28 28 U.S.C. § 1332. Kanter, 265 F.3d at 857 (a natural person’s citizenship for purposes of Case No. 12-cv-04618 NC CASE MANAGEMENT SCHEDULING ORDER AND ORDER TO SHOW CAUSE 2 1 diversity jurisdiction is determined by the state of domicile, not the state of residence); 2 Quinn v. McGraw-Hill Companies, Inc., 168 F.3d 331, 334 n.1 (7th Cir. 1999). Second, the complaint also fails to allege the citizenship of each defendant. There 3 4 are three defendants in this case--“Circus America, Inc., (aka Piccadilly Circus),” Javier 5 Ramon Martinez, and John Pelton. Dkt. No. 1 at ¶¶ 6-9. The complaint contains no 6 allegation as to the citizenship of defendants Martinez and Pelton. The complaint also does 7 not sufficiently allege the citizenship of the business entity defendant. The complaint 8 alleges that defendant Circus America, Inc. is “a business entity, form unknown, with its 9 principal place of business in Sarasota, Florida.” Id. at ¶ 6. However, the mere allegation 10 of a corporate party’s principal place of business, without alleging where it is incorporated, 11 is insufficient to establish diversity. See 28 U.S.C. § 1332(c) (for purposes of diversity, “a 12 corporation shall be deemed to be a citizen of every State and foreign state by which it has 13 been incorporated and of the State or foreign state where it has its principal place of 14 business”) (emphasis added); see also Indiana Hi-Rail Corp. v. Decatur Junction Ry. Co., 15 37 F.3d 363, 365 n.3 (7th Cir. 1994); Joiner v. Diamond M Drilling Co., 677 F.2d 1035, 16 1039 (5th Cir. 1982). In the case of an artificial business entity that is not a corporation, 17 the entity’s citizenship for diversity purposes generally depends on the citizenship of each 18 of its members. Carden v. Arkoma Associates, 494 U.S. 185, 195 (1990). Because the complaint does not contain sufficient allegations to establish that all 19 20 plaintiffs are of diverse citizenship to all defendants, by April 24, 2013 plaintiffs must 21 amend their complaint to plead an adequate basis for diversity jurisdiction, or file a 22 response showing cause why this action should not be dismissed for lack of federal subject 23 matter jurisdiction. 2. ALTERNATIVE DISPUTE RESOLUTION. By April 10, 2013, the parties must 24 25 meet and confer about settlement and the ADR process selection, file their ADR 26 certifications, and file either an ADR stipulation, or notice of need for ADR phone 27 conference in accordance with Civil L.R. 16-8(b)-(c) and ADR L.R. 3-5. 28 // Case No. 12-cv-04618 NC CASE MANAGEMENT SCHEDULING ORDER AND ORDER TO SHOW CAUSE 3 1 3. DISCOVE ERY. By April 10, 2013, the part must co A ties omply with the initial ure ments of Fed R. Civ. P. 26(a)(1) a exchang an initial production of d. P and ge l n 2 disclosu requirem nts. 3 documen 4 4. FURTHER CASE MANAGEM R M MENT CON NFERENCE A further case E. r ment b M m. troom A, 15 5th 5 managem conference will be held on May 22, 2013 at 10 a.m in Court U t 0 e, cisco, Calif fornia. The 6 Floor, U.S. District Court, 450 Golden Gate Avenue San Franc m m t e or 7 parties must file a joint case management statement at least one week prio to the nce. See Ci L.R. 16 ivil 6-10(d). 8 conferen 9 10 0 11 1 IT IS SO OR T RDERED. Date: April 1, 2013 __________ _ __________ ________ Nath hanael M. C Cousins Unit States M ted Magistrate J Judge 12 2 13 3 14 4 15 5 16 6 17 7 18 8 19 9 20 0 21 1 22 2 23 3 24 4 25 5 26 6 27 7 28 8 Case No. 12-cv-04618 NC CASE MANAGEME M ENT SCHED DULING ORDER AND ORDER TO SHO CAUSE R OW E 4

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