ALC Power Road LLC v. Nationwide General Insurance Company

1 WO 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 ALC Power Road LLC, No. CV-23-02591-PHX-DWL 10 Plaintiff, ORDER v. Nationwide General Insurance Company, et al., Defendants.

15 The Court has an independent obligation to determine whether it has subject-matter jurisdiction. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999). Pursuant to Rule 12(h)(3) of the Federal Rules of Civil Procedure, “[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”

19 Defendant removed this action solely on the basis of diversity jurisdiction. (Doc.

20 1.) The party seeking to invoke diversity jurisdiction has the burden of proof, Lew v. Moss, 797 F.2d 747, 749-50 (9th Cir. 1986), by a preponderance of the evidence. McNatt v. Allied-Signal, Inc., 972 F.2d 1340 (9th Cir. 1992); see 13B Federal Practice § 3611 at 521 & n. 34. There is a strong presumption against removal jurisdiction. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (“Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance.”).

26 “Absent unusual circumstances, a party seeking to invoke diversity jurisdiction should be able to allege affirmatively the actual citizenship of the relevant parties.” Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001).

1 Diversity jurisdiction exists when there is complete diversity of citizenship between the plaintiffs and the defendants and the amount in controversy exceeds $75,000, exclusive of interests and costs. 28 U.S.C. § 1332. A controversy meets this requirement when “all the persons on one side of it are citizens of different states from all the persons on the other side.” Strawbridge v. Curtiss, 7 U.S. 267 (1806). Here, the Notice of Removal is facially deficient because it fails to affirmatively set forth the facts necessary to determine all parties’ citizenship.

8 Defendant has not alleged facts sufficient to establish the citizenship of Plaintiff ALC Power Road LLC. An LLC “is a citizen of every state of which its owners/members are citizens.” Johnson v. Columbia Properties Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006). Thus, to properly establish diversity jurisdiction “with respect to a limited liability company, the citizenship of all of the members must be pled.” NewGen, LLC v. Safe Cig, LLC, 840 F.3d 606, 611 (9th Cir. 2016) (emphasis added). Defendant must list the members of each LLC and affirmatively allege the citizenship of each, using the proper legal standard for each—alleging the place of domicile1 for members who are natural individuals, the place of incorporation and principal place of business for members that are corporations, and, if any of the LLC’s members are LLCs, the citizenship of each of the member LLC’s members must be alleged, again using the proper legal standards.

19 To cure this pleading deficiency, the Court will require Defendant to file an amended notice of removal that affirmatively alleges Plaintiff’s citizenship under the correct legal standard. Star Ins. Co. v. West, 2010 WL 3715155, *2 (D. Ariz. 2010); see also NewGen, 840 F.3d at 612 (“Courts may permit parties to amend defective allegations of jurisdiction at any stage in the proceedings.”). Defendant is advised that failure to timely comply with this order shall result in the remand of this action without further notice for lack of subject-matter jurisdiction.

26 To ensure that the requirements of subject-matter jurisdiction are met, the Court will require Plaintiff to file a notice informing the Court of its citizenship.

28 1 An individual’s state of domicile is “her permanent home, where she resides with the intention to remain or to which she intends to return.” Kanter, 265 F.3d at 858-59.

1 Accordingly, 2 IT IS ORDERED that Plaintiff shall file a notice informing the Court of the || citizenship of all of its members by January 10, 2024.

4 IT IS FURTHER ORDERED that Defendant shall file an amended notice of || removal properly stating a jurisdictional basis for this action no later than January 17, 6|| 2024.

7 IT IS FURTHER ORDERED that if Defendant fails to file an amended notice of || removal by January 17, 2024, the Clerk of Court shall remand this action to state court || without further notice.

10 Dated this 3rd day of January, 2024.

12 Lom ee” 13 f □□ □□ Dominic W. Lanza 14 United States District Judge -3-