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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

LOK T. LAU,

Plaintiff,

v.

ANTONIO V. SILVA, ANTONIO V.

SILVA P.C., PATRICIA TSUBOKAWA

REEVES, and REEVES & ASHLEY, 

Defendants.

CIV. S-04-2351 WBS PAN PS

 ORDER

—NFN—

In separate motions, defendants Silva and Reeves and

their respective law firms move to dismiss plaintiff’s complaint

for lack of subject matter jurisdiction and failure to state a

claim. Fed. R. Civ. P. 12(b)(1) and (6). Plaintiff has filed an

opposition and motion for leave to file an amended complaint. 

Fed. R. Civ. P. 15(a).

The complaint, filed November 2, 2004, invokes this

court’s diversity jurisdiction and seeks $5 million damages based

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on state law claims for legal malpractice, professional

negligence, breach of contract and conversion by attorneys Silva

and Reeves. Plaintiff, a former FBI agent, alleges he entered

into contracts with Silva in April 1999 and Reeves in February

2002 for legal representation in plaintiff’s action against the

U.S. Department of Justice. That action--Lau v. John Ashcroft,

Attorney General, Civ. S-02-0390 GEB GGH--alleged discrimination

based on race and national origin in violation of Title VII,

discrimination based on disability in violation of the

Rehabilitation Act, and retaliatory termination. On November 3,

2003, the Honorable Garland E. Burrell, Jr., granted defendant’s

motion for summary judgment on each of plaintiff’s claims. 

Plaintiff now asserts defendants failed adequately to represent

him.

Defendants contend this court is without subject matter

jurisdiction due to the lack of complete diversity among the

parties.

A federal court’s authority to hear cases in diversity is

set forth at 28 U.S.C. § 1332. “The diversity jurisdiction

statute, as construed for nearly 200 years, requires that to

bring a diversity case in federal court against multiple

defendants, each plaintiff must be diverse from each defendant. 

That compliance with the diversity statute, including its

complete diversity requirement, is the sine qua non of diversity

jurisdiction was made clear in Newman-Green, Inc. v. AlfonzoLarrain, 490 U.S. 826 (1989). In a case involving claims against

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multiple defendants, ‘the plaintiff must meet the requirements of

the diversity statute for each defendant. Id. at 829.’” Lee v.

American National Insurance Company, 260 F.3d 997, 1004-1005 (9th

Cir. 2001) (fn. and citations omitted). 

“A party invoking the federal court's jurisdiction has

the burden of proving the actual existence of subject matter

jurisdiction.” Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir.

1996); Fed. R. Civ. P. 8(a) (requiring that a pleading set forth

“a short and plain statement of the grounds upon which the

court’s jurisdiction depends”). 

The complaint does not identify plaintiff’s citizenship

or domicile and asserts only that defendant Silva is “a licensed

Attorney within the State of Texas” where he “maintains an

office” and defendant Reeves is “a licensed Attorney within the

State of California” where she “maintains an office.” The

proposed amended complaint states that plaintiff is a California

citizen “duly domiciled in the county of Sacramento,” defendant

Reeves is a “resident of California,” and defendant Silva

“resides” and is “domiciled” in Texas. 

Domicile and citizenship are synonymous for diversity

purposes. Williamson v. Osenton, 232 U.S. 619, 624 (1914). 

Domicile rests upon establishing a residence with the intent of

maintaining it permanently or indefinitely. Id., Mitchell v.

U.S., 88 U.S. 350, 353 (1874). An allegation of residency alone

does not establish domicile. Matin v. Broadcast Music, Inc., 244

F.2d 204, 206 (9th Cir. 1957). The essential fact transforming a

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residence to a domicile is the absence of any intention to live

elsewhere. Williamson, 232 U.S. at 624.

Plaintiff’s proposed amended complaint avers adequately

the diversity of citizenship between plaintiff and Silva;

assuming without deciding that Reeves is domiciled in California,

her inclusion extinguishes complete diversity. Since plaintiff

asserts Reeves is essential to his action and names her as a

defendant in both his complaint and proposed amended complaint,

neither support this court’s exercise of diversity jurisdiction. 

Nor may this court exercise original subject matter jurisdiction

over plaintiff’s state law claims. 

Accordingly, defendant’s motion to dismiss is granted and

the complaint dismissed. Plaintiff’s motion for leave to file

the proposed amended complaint is denied. 

Plaintiff may, within twenty days after service of this

order, file and serve an amended complaint that excludes Reeves,

if appropriate, or otherwise secures this court’s jurisdiction. 

Failure timely to file an amended complaint will result in a

recommendation this action be dismissed.

So ordered.

Dated: August 31, 2005. 

 /s/ Peter A. Nowinski 

 PETER A. NOWINSKI

 Magistrate Judge

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