RD Legal Funding, LLC v. Erwin & Balingit, LLP et al

Filing 3

ORDER DISMISSING COMPLAINT for Lack of Subject Matter Jurisdiction: Plaintiff may amend the complaint to correct this pleading defect. Amended complaint due 4/21/08. Signed by Judge M. James Lorenz on 4/4/2008. (mjj)

RD Legal Funding, LLC v. Erwin & Balingit, LLP et al

Doc. 3

Case 3:08-cv-00597-L-RBB

Document 3

Filed 04/04/2008

Page 1 of 3

1 2 3 4 5 6 7 8 9 10 11 RD LEGAL FUNDING, LLC, 12 13 v. 14 ERWIN & BALINGIT, LLP, et al., 15 16 17 Defendants. Plaintiff, ) ) ) ) ) ) ) ) ) ) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA Civil No. 08cv597-L(RBB) ORDER DISMISSING COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION

Plaintiff RD Legal Funding, LLC ("RD Legal") filed a complaint for breach of contract

18 and other state law claims based on diversity of citizenship pursuant to 28 U.S.C. § 1332. 19 Because the complaint fails to allege the facts necessary to determine whether the parties are 20 diverse, it is dismissed for lack of subject matter jurisdiction. 21 The federal court is one of limited jurisdiction. See Gould v. Mutual Life Ins. Co. of N.Y.,

22 790 F.2d 769, 774 (9th Cir. 1986). It possesses only that power authorized by the Constitution 23 or a statute. See Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986). It is 24 constitutionally required to raise issues related to federal subject matter jurisdiction, and may do 25 so sua sponte. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 93-94 (1998); see Indus. 26 Tectonics, Inc. v. Aero Alloy, 912 F.2d 1090, 1092 (9th Cir. 1990). A federal court must satisfy 27 itself of its jurisdiction over the subject matter before proceeding to the merits of the case. 28 Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 577, 583 (1999).
08cv597

Dockets.Justia.com

Case 3:08-cv-00597-L-RBB

Document 3

Filed 04/04/2008

Page 2 of 3

1

The plaintiff bears the burden of demonstrating that jurisdiction is properly before the

2 court. See Thornhill Publ'g Co. v. General Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir. 3 1979). The complaint must affirmatively allege the state of citizenship of each party. Bautista v. 4 Pan Am. World Airlines, Inc., 828 F.2d 546, 551 (9th Cir. 1987); see also Kanter v. Warner5 Lambert, Co., 265 F.3d 853 (9th Cir. 2001). 6 Plaintiff alleges that it is a New Jersey limited liability company with a principal place of

7 business in Englewood, New Jersey, Defendant Erwin & Balingit, LLP is a California limited 8 liability partnership with a principal place of business in San Diego, California, and that 9 Defendants Darrell N. Erwin and Clarence M. Balingit are individuals currently residing in San 10 Diego, California. (Compl. at 2.) 11 For diversity purposes, a person is a citizen of a state in which he is domiciled. Kanter,

12 265 F.3d at 857. Plaintiff does not allege where Messrs. Erwin and Balingit are domiciled, but 13 were they currently reside. "But the diversity jurisdiction statute, 28 U.S.C. § 1332, speaks of 14 citizenship, not of residency." Id. "A person residing in a given state is not necessarily 15 domiciled there, and thus is not necessarily a citizen of that state." Id. Accordingly, Plaintiff 16 fails to adequately allege citizenship of Messrs. Erwin and Balingit for purposes of diversity 17 jurisdiction. See id. 18 Furthermore, the citizenship of a limited liability company or a limited liability

19 partnership is determined by examining the citizenship of each of its members or partners. 20 Carden v. Arkoma Assoc., 494 U.S. 185, 195-96 (1990). Plaintiff does not allege the citizenship 21 of each of its own members or of Defendant Erwin & Balingit, LLP's members or partners, 22 which is necessary to establish diversity in this case. 23 Because the complaint does not allege the facts necessary to establish diversity as

24 required by 28 U.S.C. § 1332, it is DISMISSED for lack of subject matter jurisdiction. Plaintiff 25 / / / / / 26 / / / / / 27 / / / / / 28 / / / / /
2
08cv597

Case 3:08-cv-00597-L-RBB

Document 3

Filed 04/04/2008

Page 3 of 3

1 may amend the complaint to correct this pleading defect. See 28 U.S.C. § 1653. Any such 2 amended complaint shall be filed no later than April 21, 2008. 3 4 5 DATED: April 4, 2008 6 7 8 COPY TO: M. James Lorenz United States District Court Judge IT IS SO ORDERED.

HON. RUBEN B. BROOKS 9 UNITED STATES MAGISTRATE JUDGE 10 ALL PARTIES/COUNSEL 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
3
08cv597