Feldman v. Pokertek, Inc.

Filing 86

ORDER that the parties have until March 29, 2013, to file points and authorities establishing that this action is within the subject-matter jurisdiction of this court. FURTHER ORDERED that any party wishing to oppose positions asserted in the filings due on March 29, 2013, must file a response on or before April 10, 2013. Signed by Magistrate Judge Cam Ferenbach on 3/13/13. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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MARVIN ROY FELDMAN,

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Plaintiff,

2:09-cv-01598-JCM-VCF
MINUTE ORDER

vs.
POKERTEK, INC.,
Defendant.

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Presently before the court is defendant’s Motion to Enforce Settlement Agreement (#83).

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Plaintiff filed his Opposition to Pokertek, Inc.’s Motion to Enforce Settlement Agreement (#84), and

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defendant filed its Reply in Support of Pokertek’s Motion to Enforce Settlement Agreement (#85).

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Rule 12(h)(3) of the Federal Rules of Civil Procedures states, “If the court determines at any
time that it lacks subject-matter jurisdiction, the court must dismiss the action.”

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Paragraph 2 of Plaintiff’s Complaint (#1) and of Plaintiff’s First Amended Complaint (#16)

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allege, “This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332.” Identifying the parties

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to establish Diversity Jurisdiction, plaintiff alleges in Paragraph 3 of Dockets #1 and #16, “Marvin Roy

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Feldman (“Feldman”) is an American citizen permanently residing in Mexico.”

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Controlling Ninth Circuit and U. S. Supreme Court Authority holds that in order to be a citizen

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of a State within the meaning of 28 U.S.C. § 1332, a natural person must both be a citizen of the United

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States and be domiciled within a state. A United States citizen permanently domiciled in Mexico is

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neither a “citizen of a state” nor an “alien” for purposes of diversity jurisdiction. Newman-Green, Inc. v.

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Alfonzo-Larrain, 490 U.S. 826 (1989); Brady v. Brown, 51 F.3d 810 (1995).

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On this record, it appears that plaintiff Marvin Roy Feldman is “stateless” for purposes of 28

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U.S.C. § 1332(a)(1) and subsection 28 U.S.C. § 1332(a)(2) cannot confer jurisdiction on this court

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because plaintiff is a United States citizen.

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Accordingly, IT IS HEREBY ORDERED that the parties have until March 29, 2013, to file
points and authorities establishing that this action is within the subject-matter jurisdiction of this court.
IT IS FURTHER ORDERED that any party wishing to oppose positions asserted in the filings
due on March 29, 2013, must file a response on or before April 10, 2013.
Dated this 13th day of March, 2013.
_________________________
CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE

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