Wagner v. Digital Publishing Corporation et al

Filing 69

ORDER TO SHOW CAUSE RE DIVERSITY JURISDICTION AND CONTINUING HEARING ON MOTION FOR PARTIAL SUMMARY JUDGMENT re 57 MOTION for Summary Judgment [Partial] as to Four Spams. Show Cause Response due by 7/18/2014. Reply Briefs due 7/21/2014. Motion Hearing on Motion for Partial Summary Judgment set for 8/21/2014 08:00 AM before Hon. William Alsup.. Signed by Judge Alsup on 7/12/2014. (whalc3, COURT STAFF) (Filed on 7/12/2014)

1
2
3
4
5
6
7
8
9

IN THE UNITED STATES DISTRICT COURT

10

For the Northern District of California

United States District Court

FOR THE NORTHERN DISTRICT OF CALIFORNIA
11
12
13

CHRISTOPHER WAGNER,

14
15
16
17
18

Plaintiff,

No. C 13-04952 WHA

v.
DIGITAL PUBLISHING
CORPORATION, et al.

ORDER TO SHOW CAUSE RE
DIVERSITY JURISDICTION

Defendants.
/

19
20

This action was removed on the basis of diversity jurisdiction on October 24, 2013. In

21

the notice of removal, defendants declared that Accelerize New Media was the only defendant

22

that might be a citizen of California for the purposes of diversity jurisdiction (Dkt. No. 1). After

23

several rounds of briefings and hearings, both sides stipulated to the dismissal of Accelerize

24

(Dkt. No. 43). Following the dismissal of Accelerize, plaintiff’s motion for partial summary

25

judgment on one of defendants’ affirmative defenses was granted (Dkt. No. 53).

26

Plaintiff now moves for partial summary judgment on only four emails. In the motion,

27

plaintiff states that defendants “JunctionLights and YourAdsHere are in California; if they were

28

real entities, then it would destroy diversity” (Dkt. No. 57, Br. 5). Both defendants, however,

1

are registered entities that are named in this action. In their notice of removal, defendants claim

2

(Dkt. No. 1 at 6–7):

3
4
5
6

At both the time the state court action was filed and at the time of
removal, Defendant Junctionlights LLC was and is a Delaware sub
series limited liability company. The members of Junctionlights
are all domiciled in New York. Thus, Junctionlights is not a
citizen of California for purposes of diversity jurisdiction. The
undersigned attorney is counsel of record for Junctionlights.
Junctionlights and all of its members consent to removal.

7
8
9

11
For the Northern District of California

United States District Court

10

*

*

*

At both the time the state court action was filed and at the time of
removal, Defendant Youradshere LLC was and is a Delaware sub
series limited liability company. The members of Youradshere are
all domiciled in New York. Thus, Youradshere is not a citizen of
California for purposes of diversity jurisdiction. The undersigned
attorney is counsel of record for Youradshere. Youradshere and all
of its members consent to removal.

12
A limited liability company is a citizen of every state “of which its owners/members are
13
citizens.” Johnson v. Columbia Properties Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006).
14
Plaintiff alleges that defendants have produced documents showing that both JunctionLights and
15
YourAdsHere were registered as LLCs in 2011 and 2012, which is prior to removal. If the
16
defendant LLCs were registered in 2011 and 2012 and their principal places of business were in
17
California at the time of removal, as alleged by plaintiff, then both JunctionLights and
18
YourAdsHere would be citizens of California at the time of removal and no diversity jurisdiction
19
exists in this action.
20
28 U.S.C. 1447(c) provides that “[i]f at any time before final judgment it appears that the
21
district court lacks subject matter jurisdiction, the case shall be remanded.” See also Kelton
22
Arms Condominium Owners Ass’n, Inc. v. Homestead Ins. Co., 346 F.3d 1190, 1192 (9th Cir.
23
2003) (“Subject matter jurisdiction may not be waived, and, indeed, we have held that the district
24
court must remand if it lacks jurisdiction.”). Accordingly, both sides are ORDERED TO SHOW
25
CAUSE in responsive briefs by JULY 18, 2014, no longer than ten pages each, why this action
26
should not be remanded for lack of subject-matter jurisdiction. In their responses, both sides
27
must explain why this issue was not raised sooner and whether any other jurisdictional defects
28
2

1

exist in this action. Replies, no longer than five pages, will be due by July 21, 2014. The

2

motion hearing currently set for July 23 will be continued to AUGUST 21, 2014.

3

IT IS SO ORDERED.

4
5

Dated: July 12, 2014.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

6
7
8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3