Doyle's Carolina 7, LLC et al
Filing
70
OPINION AND ORDER: Upon review, I ADOPT the F&R 63 in part. I GRANT the defendants motion to dismiss 40 for lack of personal jurisdiction over Mr. Almon, but DENY the motion as to subject matter jurisdiction. Signed on 4/29/2011 by Judge Michael W. Mosman. (dls)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
DOYLE’S CAROLINA 7, LLC, et al.,
Plaintiffs,
No. CV 08-1507-AC
v.
OPINION AND ORDER
DAVID THURBER, et al.,
Defendants.
MOSMAN, J.,
On March 7, 2011, Magistrate Judge Acosta issued his Findings and Recommendation
(“F&R”) [63] in the above-captioned case recommending that I grant the defendants’ motion to
dismiss [40]. The plaintiffs objected [65], and the defendants responded [69]. I adopt the F&R in
part.
STANDARD OF REVIEW
The magistrate judge makes only recommendations to the court, to which any party may
file written objections. The court is not bound by the recommendations of the magistrate judge, but
retains responsibility for making the final determination. The court is generally required to make a
de novo determination of those portions of the report or specified findings or recommendation as
to which an objection is made. 28 U.S.C. § 636(b)(1)(C). However, the court is not required to
review, under a de novo or any other standard, the factual or legal conclusions of the magistrate
judge as to those portions of the F&R to which no objections are addressed. See Thomas v. Arn,
474 U.S. 140, 149 (1985); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).
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While the level of scrutiny under which I am required to review the F&R depends on whether or
not objections have been filed, in either case, I am free to accept, reject, or modify any of the
magistrate judge’s F&R. 28 U.S.C. § 636(b)(1)(C).
DISCUSSION
The plaintiffs object to the F&R’s finding that this court lacks subject matter jurisdiction
over the case and personal jurisdiction over William Almon Sr. (Objections [65] 1–4.) I adopt the
F&R’s analysis and its conclusion that this court lacks personal jurisdiction over Mr. Almon.
However, in light of the new information provided regarding diversity, I find that this court has
subject matter jurisdiction based on diversity.
In their summary judgment briefs the parties discussed extensively this court’s subject
matter jurisdiction based on a federal question and supplemental jurisdiction. However, it was not
until their response to the F&R that the plaintiffs seriously discussed diversity jurisdiction. (See
Objections [65] 7 n.2.)
The plaintiffs have clearly established diversity jurisdiction. For diversity purposes an
LLC has the citizenship of all its members. Johnson v. Columbia Props. Anchorage, LP, 437 F.3d
894, 899 (9th Cir. 2006). The Doyles are the sole members of the LLCs (Slater Decl. [60] 1–2),
and they are citizens of California. (Am. Complaint [25] ¶ 5; see also Green v. United States, 630
F.3d 1245, 1248 n.3 (9th Cir. 2011) (holding that a court may consider affidavits and declarations
when deciding a motion to dismiss for lack of subject matter jurisdiction.).) The defendants are
citizens of Washington and Oregon, and the amount in controversy exceeds $75,000, so this court
has diversity jurisdiction.1
1
The defendants cite Faysound Ltd. v. United Coconut Chemicals, Inc., 878 F.2d 290, 296 (9th Cir. 1989), to
argue that I should not take up this issue because diversity must be determined at the time the case is filed, but the
plaintiffs argued diversity jurisdiction for the first time in their objections to the F&R. The defendants misread this
case, which holds merely that diversity must be determined according to the facts that existed at the beginning of the
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CONCLUSION
Upon review, I ADOPT the F&R [63] in part. I GRANT the defendants’ motion to dismiss
[40] for lack of personal jurisdiction over Mr. Almon, but DENY the motion as to subject matter
jurisdiction.
IT IS SO ORDERED.
DATED this
29th
day of April, 2011.
/s/ Michael W. Mosman __
MICHAEL W. MOSMAN
United States District Court
case. Here, the citizenship of the parties has not changed, so the facts in place at the time the case was filed support
diversity jurisdiction.
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