federal jurisdiction exists here cox alleged the existence of minimal diversity in its notice of removal and the district court recognized that it was inconceivable that there would not be minimal diversity between the parties nevertheless the district court remanded the this court granted cox permission to appeal and i appreciate the opportunity to be here today and the whole issue is what's the difference between citizenship and residency right well sort of i actually think the bigger issue in this case is what's the no requirement to include other than cherry submissions all the defendant needs to do is assert plainly the grounds for jurisdiction when the district court remanded this case it helped cops to a higher standard it required cox to prove the existence of jurisdiction but in and you can't prove it you why are you saying it's a facial challenge because it looked to me like this whole problem would have gone away had cox simply in response to that motion asked the district court for the opportunity to take jurisdiction of discovery to learn whether ermine or really even any other members of the putative class was a citizen of california cox would have then asked german some questions where he registered to vote where do you pay your taxes state taxes do you have  a driver's license where and then there would have been evidence probably that berman was a california citizen so in response to the st question how do we know it's a facial challenge we know it's a facial challenge because mr ammon tells us it's official challenge he tells that even if his papers here to the court he says that this is a facial challenge and in response to your other question i believe cox did request the opportunity to take more jurisdictional discovery if the court believed it was necessary so we did ask for that we were not given that permission but case you obviously were able to do it here with to find something because you took me see if i get the correct who came to decorations from class members sitting there were so this is a state's outside of delaware and georgia correct we were able to do that following up on judge simon's point why didn't you just say you know give us a brief time here we will produce something that will confirm that you got citizens here not just resident because as you well know right biggest state like california  weather is sometimes good that people like to come and they'll stay here part of the year they get in the desert present but they're not citizens they vote elsewhere they have driver's licenses or else rather cars are registered elsewhere so th perspective there is a real issue there's a difference between residents see and citizenship so and in this is a pretty simple requirement and the st doesn't just affect catholic cases this is any removal of any mintz complaint mr or ms complaint alleges he's a resident of california resident but it does more than that it doesn't just say i reside in california it says i've lived here for a long time with my family i call it my home i receive internet service in my home so all of those additional facts make clear that it's more than just a sort of temporary place where he rests his head the difference between residence and dom asylum is that a person's domicile is their fixed habitation its where they live with the intent to reside permanently so if so he would have said this is where i reside this is where i have my home and i intend to stay here then you think we would have an issue right well certainly we wouldn't in that case but i don't think we have an issue here either because whether someone intends to remain in a place is measured not by their subjective statements but rather by the objective evidence that's available and here both the length of time that mr man has spent in that same home the fact that he calls at his he lives there with his family all of which is alleged in paragraph three of his complaint but that alone with respect council that alone doesn't show citizenship does it well i mean as they say for example somebody is an old california family resident they have a place in monterey on  the seventeen mile drive and every year for something less than six months in a day they go up there with their family they reside there they have their own t v sets blah blah blah but they don't  allegation which i think as a fundamental matter never happened but assuming that happened the court needs to weigh the evidence that's been talked about a lot of evidence of his intent to remain in his home for a length of time the fact that he was there with his family the fact that records in cox's own files revealed that he had been there for a long time on the other side of the ledger nothing actually had to convey should the court of taken into account these hundreds of thousands of other subscribers in california absolutely and so one of the issues is of course only needs to allege that there is minimal diversity here we had it not just that mr herman was a long term resident of california and his home but there were eight hundred and thirty two thousand other people who as of the date of this complaint received a residential internet service in california which is more than just being in the state it means they have some sort of residence some sort of house or apartment where they've gone through the effort to sign up for internet service which as i'm sure the court knows is more than just a one time purchase you  internet service on a monthly basis most people it's some evidence that that is a long term rather again if you can have somebody example of my old california family they're not they're not there somewhere else six months  day but they're still want to have their internet there when they come to moderate their seventeen mile drive if they want to have their t v they want to have all those things when i was flown by things like that but is there any reason to believe the start of it and you say that doesn't citizenship it doesn't maybe for one person but for eight hundred and thirty two thousand people the courts are allowed to infer a reasonable amount of intelligence that not all eight hundred and thirty two thousand people who reside in california as of the date of the complaint are in fact citizens of georgia and delaware which is the only way minimal diversity would not exist in this case is there any thing about this service that would have made it like a vacation home service or something i mean this was just the customers in california right so it would have to be that all eight hundred thousand customers in california actually live somewhere else not just somewhere else but actually actually in georgia or delaware and you know as we know that's almost the population of delaware that's just it's inconceivable and some cosmetic speeding burdened by alleging a possible fact that at least one of those solved the problem right well i don't know that there was a problem that needed to be solved by late if you didn't you'd take or you would never will know and i think you know one of the other fundamental issues here is that the district court didn't make a finding that there was not jurisdiction here it said well you didn't meet your pleading bergen and therefore you didn't prove it in your in your pleading therefore i'm reminding that there's no finding that there's not subject matter jurisdiction and in fact there is a moment let me ask you this that you may be right about this case and voice on that one but as a matter of general pleading i find it difficult to say that if you say you know this person is a resident of the state to establish a prime aphasia citizenship than just a challenge as a resident in a hearing i think i would as a defendant removing have an obligation not just to allege that someone is a resident but also a citizen which is what we did and that's all that the shortened plain statement said what you needed to say and i think and therefore the only challenge that would seem to make sense to me is for them saying no you were you're you're wrong on that so far and i think the issue is that the challenge makes rests on the assumption that calling someone a citizen is a legal conclusion rather than a factual assertion and i think that's just incorrect so under the federal rules under what used to be form seven now incorporated into the us court administrative office of the court forms all you have to do not as a facial challenge because you said in the petition what you need to say why and then when the plaintiff challenges it right that's ok well prove he's a citizen normally the response is all right then i need to take some jurisdictional discovery if i needed jurisdictional discovery to prove it that i would have what we did ask for but i don't think i need to jurisdictional discovery to to prove it because there was a lot already before the court not only in the four corners of the notice of removal but also in the declarations we submitted showing confirming that mr man had lived in california for years confirming that there were over eight hundred thousand class members residing in california it isn't the facial challenge some kind of it's not enough to say  a citizen you have to explain your entire legal theory and the legal theory has to line up exactly with whether everything you've done lines up with the requirements of being a citizen i mean it's like it sort of is a facial challenge as with a broader lens well i think it's a challenge to the possibility of  elevation rather than necessary maybe it's a challenge the possibility because at least as i understand it you were saying they weren't saying he is not a citizen they were just saying you didn't say the right things that's exactly right because mr man now has conceded that he is a citizen of california  argument and if he if they had said he is not a citizen right then it sounds like you tried to get your social discovery a lot of how we're supposed to know that it's in that you see after it but i think it's not part of it but so is it the district court responsibility to say we need to  to make fact finding about jurisdiction here i mean it seems like man dragon and king talk about the district court doing fact finding for jurisdiction if necessary if there's a fact dispute sure and i think i think there is a little bit of confusion because monteith and king are both burdens of proof right so i understand you might not think you even have that burden but if you did they say you should fact finding right and then i put in evidence so there was evidence on my side of the ledger to show that he was a california citizen that includes the length of time calling it his home our records confirming his citizen we said all these other people are part of the alleged class they there's nobody saying to the contrary he didn't come back and sound not a citizen he just said you didn't plead adequately and is judge simon pointed out the let me ask you the might on its face has not actually pleaded facts that if true would establish the element let me ask you this in a typical very simple diversity case that's brought in the original jurisdiction on diversity plaintiff pleads plaintiff is a citizen of citizen is a citizen of x the defendant is a citizen of state why more than seventy five thousand dollars is at issue has eno i believe in the plaintiff's pleading requirements that would be sufficient as to the defendant's citizenship and we only then go beyond that if the defendant says no we disagree we challenge we are not a citizen of facts we why we're citizen of x or you're not a citizen of x you're citizen of y why is this any different different for several reasons st a individual's state of citizenship has two specific elements that must be played  normal bread and butter diversity claim the plaintiff says i'm a citizen of state x defendant is a citizen of state y and i am more than twenty five thousand dollars to the issue and i asked you if that's sufficient and you said yes they didn't plead anything about doma sile or anything else like that of the two elements so here i asked what's the difference in this case are you telling me that here you have to go beyond when you have a removal you have to go beyond saying the basis for my removal is that plaintiff is a citizen of x and defendant a subscriber wise man to take my case but suppose we're in state court and in state court we have a filing the defendant removes under versity and says the basis for my removal on diversity is that plaintiff is a citizen of x defendant is a citizen of y more than seventy five thousand dollars is at issue is that sufficient for ordinary plain vanilla removal i submit to you that that's what most of them look like that it's what most of like and a lot of them remain and if they don't state the  thousand dollars is at issue it will not get remanded at least on a facial challenge am i wrong no i don't believe you're ok so how is this different this is different is several one for an individual citizen there are several steps that must be and they must be fact of regional area not saying if there is that isn't is enough and carolina says that you can do it on information and belief and then dart says we take the allegations as true in last there's a factual challenge to them and here you didn't make a factual challenges you don't deny that he is that isn't a california so i'm just totally baffled by how you can even be here how this ever came about it's so confusing how this came two things st as to carolina carolina was a plaintiff trying to figure out who the defendant where the defendants were reciting located carolina explicitly apply the unusual circumstances test because the plaintiff had no ability to figure out where the defendants were actually citizens so they played on information and belief invented were allowed to seek discovery after the facts ok but so they put on information and believe that your client is a citizen of california in fact you admit the california so how do you have a factual challenge the way the dart says you need i don't understand the question before the district court was did their allegations of mere residency and then jumping to a plausible conclusion not a plot not based on a possible fact but a possible conclusion that he must necessarily be a citizen and did not actually plead that the required requirement and then you got the details of what it means to be a citizen no question about that in this case there was discussion about residency residency is not citizenship but as you have admitted your in your conversation with judge simon if somebody says i'm a citizen that's it unless you come through with contrary evidence that says no i'm not i live here and blah blah blah in this particular case as respect i believe the post re manned proceedings exactly how this sort of circumstance should play out and there are no facts within their knowledge that they pleaded in a removal paper that would if true support the legal conclusion that they pleaded no let me ask you this i'm looking at the notice of removal paragraph twelve days in which the clock says defendant is informed and belie and on that basis alleges the plaintiff is a citizen of the state in which he resides as alleged in the complaint pretty in artful would you have been able to maintain a motion to remember if instead support your legal contention and a legal conclusion is the citizenship allegation that is not a factual allegation it is a legal conclusion first of all he was a resident with the internet service i mean maybe it's enough anyway but let's say it's not what about eight hundred thousand other people isn't it the case that all of them would have to either live in georgia or delaware that is from a practical standpoint that is the case and so i feel like we're like in never never land or something i mean i don't understand the writing part i think about whether and under the internet this guy was in california live in georgia in delaware and not get one it's not plausible but all of them live in georgia or delaware right it's completely ludicrous it issue was inherent in harris they said he's a resident believe he's a citizen therefore and this was the plaintiff's remained argument they took residency equated it with citizenship and therefore they didn't remove timely enough because that put them on notice that citizenship exists they missed the thirty day window they moved to remain in the harris court said hold on that puts defendants in a very difficult position if subscribers a couple more yeah right it does but the question here is it's really a question about how this terrorist impacts these types of cases is a harris said i have not put them on notice by pleading residency that the case is absolutely removable under diversity if this court holds hold on but you pleaded resident i didn't recall that you get your the wrong form friend if he's the judge did you know that you don't treat him that way i was making your mean i really disrespectful very disrespectful i caution you your eye like a judge ok i wasn't referring to him i was just how you were because when i leave the company of my colleagues appear and i'm to go back to district court and i see a number of removal cases where the basis is diversity and what it says in the petition is plaintiff as a citizen of oregon defendant as a citizen of delaware more than seventy five thousand dollars additional we remove if plaintiff then moves to re manned and says your honor under the th circuit decision under harris versus rand that's not enough what am i supposed to do so the example was the complaint alleged to citizenship not necessarily doesn't matter to allege the residence or no double edge anything a complaint is in state court is general jurisdiction sure the petition for removal says is a citizen of oregon defendant as a citizen of delaware more than seventy five thousand additional we remove on the basis of diversity and then i get the plaintiff's motion to remain and back to state court and the plaintiff says your honor look at harris independent investigation to figure out whether residency in this case equated to citizenship and why is the well really simple window they have to remove if all the other elements are satisfied also in waiting if it doesn't state citizenship it doesn't affirmatively allege citizenship then it is an indeterminate pleading which is what this was and the discovery can conduct an independent investigation and having looked at their records they could have easily plaid in their initial removal pleading they could have easily pled lots of facts that had they done so i wouldn't have filed this motion they didn't plead any facts they said you said you're a resident we think you're a citizen which is a legal conclusion not a factual allegation therefore we're going to remove on that basis alone under harris that was not enough because if it was enough then all other defendants would all of a sudden have the same burden when it residency allegation is alleged that triggers their  talked about a situation where because of a weird stipulation there was it was really close to line whether there were enough people or not and so there the court is like you need to take jurisdictional skiver you need to make fact findings here everyone agrees it's inconceivable that there isn't diversity so why should we adopt a rule in this case i mean why shouldn't we be like king and say when it's really close the line maybe you need more discovery or maybe something you're saying would make sense and if the two asian where you are one person short but we have eight hundred thousand residents of california this seems like a bad place to talk about any of this can you address that i can what i would say is that eight one hundred thousand residents of california gave them a very easy job to do which was to find one discovery i think perhaps in their brief in conclusion they said if you really believe we had we don't have enough based on evidence we submitted in a motion to compel arbitration so there are multiple motions they're filing and they started citing evidence on the other motion that it is impossible that jurisdiction does not exist but if this court determines that a residency allegation loan in an indeterminate pleading creates a plausible allegation of citizenship for purposes of removal that does not just impact large class actions where there are thousands or hundreds of thousands of people what it does is it impacts every defendant that may be put in a situation where it says residence we're not sure if it says enough to get to citizenship it's a big class all of a sudden defendants are put in the box and one of the arguments i made at the district court was if you create two different removal standards based on residency allegations alone it will end up being a pyrrhic victory for defendants in these types of cases because there are a lot of other defendants that will not have the eight hundred thousand people that all have residential services and therefore they can plausibly that maybe there needs to be some rule for cases where it's not blatantly i would generally say that the bright line rule makes a lot of sense in all cases if there ends up being a bright line rule for nonprofit cases which is what the district court focused on and a it's big enough that we know what's going to happen so why not let you remove anyway standard that i do i do believe the bright line rule that harris said is appropriate for these cases as well and i think we have your argument take the other question for my colle certainly not the standard of that harris versus rand case the harris versus bankers case they actually i encouraged the court to look at that before concluding that it simply says an allegation of residency isn't enough in that case the allegation was that a person in montana thirty years before the complaint was filed and the actual issue in the case was oh it turned out that i was dead and so if we had known he was dead then we would have not had complete diversity was ruined if he had been alive and a citizen of montana but since he was dead and therefore not a citizen of anywhere complete diversity existed and so i encourage the court not to draw a conclusion of it if we conclude that simply alleging residency all by itself without anything more rule here would you also agree though that if you state you jest there a resident alone nothing as is no residence plus right either what was said in the response or the fact there were a one hundred something one thousand people involved that's not enough right the court stands in recess for the day this case is submitted