Beaudoin et al v. J.B. Justice & Company et al

Filing 23

ORDER. IT IS ORDERED that: 1)This case be transferred to the Great Falls Division for assignment to Magistrate Judge Keith Strong, in accordance with the parties' consent to Magistrate Judge jurisdiction; and 2) On or before 5/31/2012, Plaintiffs may file a motion to amend their complaint to properly allege diversity jurisdiction. Absent amendment, the Complaint is subject to dismissal. Signed by Magistrate Carolyn S Ostby on 4/18/2013. (JDH, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
NANETTE BEAUDOIN and
ANTHONY THERRIEN, husband
and wife,

CV-13-01-BLG-RFC-CSO

ORDER
Plaintiffs,
vs.
WALTER CAMPOS, J.B.
JUSTICE & COMPANY, and
SPARTA INSURANCE
COMPANY,
Defendants.
Plaintiffs filed this action in the District of Montana, Billings
Division. The Complaint alleges that Plaintiffs are Canadian citizens
and that the accident giving rise to their claims occurred in Judith
Basin County, Montana. See Cmplt (ECF 1) at ¶¶ 1, 11. Jurisdiction is
based on diversity of citizenship.
As explained below, the Complaint is subject to dismissal because

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the citizenship of the defendants is not properly pled. It is incumbent
upon the Court to satisfy itself of subject matter jurisdiction at all
times throughout a proceeding. Rule 12(h)(3), Fed. R. Civ. P., provides
that “[i]f the court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”
The Complaint alleges that Defendant J.B. Justice & Company is
“a corporation organized under the laws of, and with its principal place
of business in, a state other than Montana...” ECF 1 at ¶ 2. This
allegation is insufficient to establish diversity jurisdiction. See Hester
v. PHH Mortgage, 2010 WL 2923495, n. 1 (E.D. Cal. 2010) (“Plaintiffs’
diversity jurisdiction allegation that Defendants are ‘based in’ states
other than California ‘is insufficient without an allegation as to the
state in which [Defendants are] incorporated and that state in which
[they have their] principal place of business.’” (citing Veeck v.
Commodity Enter., Inc., 487 F.2d 423, 426 (9th Cir. 1973)) (alteration in
original)).
The Complaint alleges that Defendant Walter Campos “is an
individual believed by Plaintiffs to be a resident of Texas.” ECF 1 at ¶
3. Allegations of residency – as opposed to citizenship – are
insufficient. Wachovia Bank v. Schmidt, 546 U.S. 303, 318 (2006) (“An
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individual who resides in more than one State is regarded, for purposes
of federal subject-matter (diversity) jurisdiction, as a citizen of but one
State”). See also Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th
Cir. 2001) (“[T]he diversity jurisdiction statute, 28 U.S.C. § 1332,
speaks of citizenship, not of residency”).
The Complaint alleges that “[u]pon information and belief, Sparta
Insurance Company’s principal place of business is Connecticut.” Id. at
¶¶ 3, 4. This jurisdictional allegation likewise is insufficient to
establish diversity jurisdiction. See Kanter v. Warner-Lambert Co.,
supra, 265 F.3d at 857 (“Absent unusual circumstances, a party seeking
to invoke diversity jurisdiction should be able to allege affirmatively
the actual citizenship of the relevant parties”); see also Jan Marini Skin
Research, Inc. v. Fed. Exp. Corp., 2010 WL 251648 (N.D. Cal. 2010) (“A
petition alleging diversity of citizenship upon information and belief is
insufficient”).
Furthermore, assuming Plaintiffs’ jurisdictional allegations are
properly amended, venue is improper in this Division. Local Rule
3.2(b) provides that “venue is proper in any Division of the Court
containing a county of proper venue under the laws of the State of
Montana.” Montana Code Annotated § 25-2-122 provides:
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(2) ...if the defendant is a corporation incorporated in a state other
than Montana, the proper place of trial for a tort action is:
(a) the county in which the tort was committed;
(b) the county in which the plaintiff resides; or
(c) the county in which the corporation’s resident agent is
located...
(3) ...if the defendant is a resident of a state other than Montana,
the proper place of trial for a tort action is:
(a) the county in which the tort was committed;
(b) the county in which the plaintiff resides.
(formatting added).
Thus, based on the allegations of Plaintiffs’ Complaint, the proper
venue for this tort action is Judith Basin County, Montana – “the
county in which the tort was committed.” Judith Basin County is in
this District’s Great Falls Division. See Local Rule 1.2(c)(3).
For the reasons set forth above,
IT IS ORDERED that:
1. This case be transferred to the Great Falls Division for
assignment to Magistrate Judge Keith Strong, in accordance with the
parties’ consent to Magistrate Judge jurisdiction (see ECF 9); and
2. On or before May 31, 2013, Plaintiffs may file a motion to
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amend their complaint to properly allege diversity jurisdiction. Absent
amendment, the Complaint is subject to dismissal.
DATED this 18th day of April, 2013.
/s/ Carolyn S. Ostby
United States Magistrate Judge

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