Page et al v. Suss MicroTec A.G. et al

Filing 12

ORDER denying Page's 11 Motion to Set Aside Dismissal. Signed by Judge Larry Alan Burns on 6/10/11. (All non-registered users served via U.S. Mail Service)(kaj)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JOSEPH E. PAGE and JOHN BROOK,

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CASE NO. 11cv0955-LAB (NLS)

Plaintiff,

ORDER DENYING MOTION TO
SET ASIDE DISMISSAL

vs.
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SÜSS MICROTEC A.G., et al.,
Defendants.

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Plaintiffs filed their complaint in this case on May 3, 2011. The Court, seeing that they

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had not adequately alleged facts to establish diversity jurisdiction, on May 4 ordered them

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to show cause why the action should not be dismissed. That order pointed out several

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jurisdictional defects. It also allowed Plaintiffs, if they thought they could amend their

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complaint to successfully allege jurisdiction, to do so, but still required them to respond to

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the order to show cause.

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Plaintiff Page filed a response, but Brook filed nothing. On May 26, after the time had

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passed for Brook to file his response, the Court issued an order pointing out several

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jurisdictional defects that remained, and dismissing the action without prejudice for lack of

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jurisdiction.

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Page (but not Brook) then filed a motion seeking to set aside the order of dismissal.

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This is brought under Fed. R. Civ. P. 60(b), but is essentially a motion for reconsideration.
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11cv0955

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Page’s motion argues that the Court erred in concluding diversity was lacking, in part

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because of allegations that were missing from the complaint but which he is now prepared

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to make, and in part because he thinks the Court overlooked relevant Supreme Court

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precedent.

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Motions for reconsideration are disfavored and appropriate only if the Court is

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presented with newly discovered evidence or a change in controlling law, or has committed

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clear error. Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir.2004). None of the factors are

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present here.

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The Court’s order of May 26 makes clear its dismissal was based primarily on the fact

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that Plaintiffs attempted to establish diversity by showing that a U.S. citizen and an alien

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from one country were suing an alien from a different country. Under Nike, Inc. v. Comercial

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Iberica de Exclusivas Deportivas, S.A., 20 F.3d 987,991 (9th Cir. 1994) this is insufficient to

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establish diversity jurisdiction. Nike remains good law in this Circuit, and requires dismissal.

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See Alperin v. Franciscan Order, 2011 WL 917375, slip op. at *2 (9th Cir. March 17, 2011)

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(“Plaintiffs do not dispute that the district court correctly determined that their complaint did

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not establish diversity jurisdiction under § 1332(a) because of the presence of foreign

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plaintiffs and a foreign defendant.”) (citing Nike).

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Page’s motion does not address this point. Page’s motion instead addresses

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secondary pleading defects the Court identified, arguing Page is a California citizen and

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Süss MicroTec A.G. is a German citizen only. Even accepting that Page can amend the

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complaint to include the allegations he has identified, and that the absent Brook will agree

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to the amendment, diversity is still not satisfied.

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Page’s motion to set aside the dismissal is therefore DENIED.

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IT IS SO ORDERED.

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DATED: June 10, 2011

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HONORABLE LARRY ALAN BURNS
United States District Judge

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11cv0955