Shchemelinin et al v. Party Princess USA et al

Filing 10

ORDERED: This case will be dismissed on October 26, 2017, unless Defendants file an amended notice of removal properly alleging jurisdiction on or before that date. Contingent upon Defendants' compliance with this Order, Plaintiffs' Unopposed Motion for Extension of Time is GRANTED. Signed by Judge Sam E Haddon on 10/19/2017. (HEG)

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IN THE UNITED STATES DISTRICT COURT

FILED

FOR THE DISTRICT OF MONTANA

OCT 19 2017

BUTTE DIVISION

ANATOL Y SHCHEMELININ;
ANNA SHCHEMELININ; and BIG
SKY FAIRIES, LLC,

Clerk, U.S. District Court
District Of Montana
Helena

No. CV-17-73-BU-SEH

Plaintiffs,
ORDER

vs.

PARTY PRINCESS USA, LLC;
PARTY PRINCESS
INTERNATIONAL, LLC;
CREATIVE COSTUMES, LLC;
JOHN DOES DEFENDANTS 1-10
and XYZ CORPS 1-10,
Defendants.

Diversity jurisdiction is claimed. 1 However, the requisite diversity of citizenship
necessary to establish diversity jurisdiction is not pleaded.
Diversity of citizenship jurisdiction, if it exists, must be grounded in 28
U.S.C. § 1332. That statute provides in pertinent part:
(a) The district courts shall have original jurisdiction of
all civil actions where the matter in controversy exceeds
1

Doc. 1 at 3.

...
the sum or value of $75,000, exclusive of interest and
costs, and is between( 1) citizens of different States;
28 U.S.C. § 1332 (a)(l).
It is fundamental that federal jurisdiction cannot be presumed. The diversity

statute requires complete diversity of citizenship between all plaintiffs and all
defendants. 15 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE§
102.12, at 102-28 (3d ed. 2015). It is to be strictly construed. City of Indianapolis

v. Chase Nat. Banko/City a/New York, 314 U.S. 63 (1941). A defendant
removing a case from state court to federal court has the burden of establishing
federal jurisdiction. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992).
"Federal jurisdiction must be rejected ifthere is any doubt as to the right of
removal in the first instance." Gaus, 980 F.2d at 566.
Defendants allege Plaintiffs are "residents of Bozeman, Montana." 2 "[T]he
diversity jurisdiction statute, 28 U.S.C. § 1332, speaks of citizenship, not of
residency." Kanter v. Warner-Lambert, 265 F.3d 853, 857 (9th Cir. 2001).
Defendants have not alleged Plaintiffs' citizenship. An allegation of residency is
insufficient to invoke diversity jurisdiction. Kanter, 265 F.3d at 857.

2

Doc. I at 3.

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Fed. R. Civ. P. 12(h)(3) and case law provide that a party, or the court on its
own initiative, may raise lack of subject-matter jurisdiction issues at any stage in
the litigation, even after the trial and judgment entry. Arbaugh v. Y & H Corp"'
546 U.S. 500, 506 (2006).
ORDERED,
This case will be dismissed on October 26, 201 7, unless Defendants file an
amended notice of removal properly alleging jurisdiction on or before that date.
Contingent upon Defendants' compliance with this Order, Plaintiffs' Unopposed
Motion For Extension of~e 3 is GRANTED.
DATED this

_jj__~y of October, 2017.

United States District Court

3

Doc. 9.