Altaye v. Pensamiento et al

Filing 15

ORDER TO SHOW CAUSE. If Defendants do not, by 4/4/2018, file an amended Notice of Removal that establishes this court's jurisdiction in a manner consistent with the preceding discussion, the court will remand this action to Santa Clara County Superior Court. Signed by Judge Edward J. Davila on 3/30/2018. (ejdlc1S, COURT STAFF) (Filed on 3/30/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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ALI ALTAYE,

Case No. 5:18-cv-01679-EJD

Plaintiff,
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ORDER TO SHOW CAUSE

v.
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DORA PENSAMIENTO, et al.,

United States District Court
Northern District of California

Defendants.
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The instant action was removed to this court by Defendants Dora Pensamiento, Carlos

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Marroquin, and Selvin Marroquin, doing business as Brother’s Truck and Trailer Repair. As it

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must, the court has reviewed the Notice of Removal and other relevant pleadings to determine

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whether Defendants have adequately established a basis for subject matter jurisdiction. See

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Henderson v. Shinseki, 562 U.S. 428, 434 (2011) (“[F]ederal courts have an independent

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obligation to ensure that they do not exceed the scope of their jurisdiction, and therefore they must

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raise and decide jurisdictional questions that the parties either overlook or elect not to press.”); see

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also Snell v. Cleveland, Inc., 316 F.3d 822, 826 (9th Cir. 2002) (“[A] court may raise the question

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of subject matter jurisdiction, sua sponte, at any time during the pendency of the action, even on

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appeal.”). They have not.

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“Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of

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Am., 511 U.S. 375, 377 (1994). “[S]ubject-matter jurisdiction refers to the court’s statutory or

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constitutional power to adjudicate the case.” Pistor v. Garcia, 791 F.3d 1104, 1110-11 (9th Cir.

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2015) (internal quotations omitted). Consistent with a federal court’s limited jurisdiction,

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“removal is permissible only where original jurisdiction exists at the time of removal.” Lexecon

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Case No.: 5:18-cv-01679-EJD
ORDER TO SHOW CAUSE
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Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 43 (1998). “Where doubt regarding

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the right to removal exists, a case should be remanded to state court.” Matheson v. Progressive

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Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003); see 28 U.S.C. § 1447(c) (“If at any time

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before final judgment it appears that the district court lacks subject matter jurisdiction, the case

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shall be remanded.”)

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Defendants state in the Notice of Removal that this court has subject matter jurisdiction

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under 28 U.S.C. § 1332. “For a case to qualify for federal jurisdiction under 28 U.S.C. § 1332(a),

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there must be complete diversity of citizenship between the parties opposed in interest.” Kuntz v.

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Lamar Corp., 385 F.3d 1177, 1181 (9th Cir. 2004). Consequently, Defendants must “allege
affirmatively the actual citizenship of the relevant parties.” Kanter v. Warner-Lambert Co., 265

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United States District Court
Northern District of California

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F.3d 853, 857 (9th Cir. 2001); accord DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n.3

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(2006) (Because “federal courts lack jurisdiction unless the contrary appears affirmatively from

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the record, the party asserting federal jurisdiction when it is challenged has the burden of

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establishing it.”).

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Furthermore, a case “may not be removed if any of the parties in interest properly joined

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and served as defendants is a citizen of the State in which such action is brought.” 28 U.S.C. §

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1441(b)(2). Stated differently, “the presence of a local defendant at the time removal is sought

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bars removal.” Spencer v. U.S. Dist. Ct. for N. Dist. of Cal., 393 F.3d 867, 870 (9th Cir. 2004).

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Here, Defendants indicate in the Notice of Removal that Dora Pensamiento, Carlos

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Marroquin and Selvin Marroquin are each residents of California. This representation is

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problematic for two reasons. First, statements revealing an individual’s residence, as opposed to

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their domicile, fail to confirm diversity of citizenship. See Kanter, 265 F.3d at 857 (“The natural

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person’s state citizenship is [] determined by her state of domicile, not her state of residence.”).

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Second, if as the court suspects Defendants are each citizens of California rather than merely

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residents of the state, they were not permitted to remove this action originally filed in California

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state court. See 28 U.S.C. § 1441(b)(2).

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Because Defendants have not satisfied their obligation to affirmatively demonstrate federal
Case No.: 5:18-cv-01679-EJD
ORDER TO SHOW CAUSE
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subject matter jurisdiction, the court issues an order to show cause why this action should not be

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remanded. If Defendants do not, by April 4, 2018, file an amended Notice of Removal that

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establishes this court’s jurisdiction in a manner consistent with the preceding discussion, the court

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will remand this action to Santa Clara County Superior Court. See 28 U.S.C. § 1653.

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No hearing will be held on the order to show cause unless otherwise ordered by the court.

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IT IS SO ORDERED.
Dated: March 30, 2018
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EDWARD J. DAVILA
United States District Judge

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United States District Court
Northern District of California

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Case No.: 5:18-cv-01679-EJD
ORDER TO SHOW CAUSE
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