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WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Jacob Benson, et al., 

Plaintiffs, 

v. 

Casa De Capri Enterprises LLC, et al., 

Defendants.

No. CV-18-00006-PHX-DWL

ORDER 

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.” 

 Defendant Continuing Care Risk Retention Group Incorporated (“Defendant”) 

removed this action on January 2, 2018 solely on the basis of diversity jurisdiction. (Doc. 

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). 

Having reviewed the Notice of Removal, the Court finds it is facially deficient 

because it does not allege the citizenship of any of Plaintiffs. The Notice of Removal states 

that “Plaintiffs allege to be Arizona residents.” (Doc. 1 ¶ 10.) But the factual allegation 
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that Plaintiffs are residents of Arizona does not establish they are citizens of Arizona for 

purposes of establishing diversity jurisdiction. “It has long been settled that residence 

and citizenship [are] wholly different things within the meaning of the Constitution and the 

laws defining and regulating the jurisdiction of the . . . courts of the United States; and that 

a mere averment of residence in a particular state is not an averment of citizenship in that 

state for the purpose of jurisdiction.” Steigleder v. McQuesten, 198 U.S. 141, 143 (1905). 

“To be a citizen of a state, a natural person must first be a citizen of the United States. The 

natural person’s state citizenship is then determined by her state of domicile, not her state 

of residence. A person’s domicile is her permanent home, where she resides with the 

intention to remain or to which she intends to return.” Kanter v. Warner–Lambert Co., 265 

F.3d 853, 858-59 (9th Cir. 2001) (emphasis added) (citations omitted); see also id. (“In this 

case, neither Plaintiffs’ complaint nor [Defendants’] notice of removal made any allegation 

regarding Plaintiffs’ state citizenship. Since the party asserting diversity jurisdiction bears 

the burden of proof, [Defendants’] failure to specify Plaintiffs’ state citizenship was fatal 

to Defendants’ assertion of diversity jurisdiction.”). Thus, an allegation regarding 

Plaintiffs’ state of residence fails to establish their state of domicile—their permanent 

home—and has no bearing on the determination of their citizenship for diversity purposes.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). 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.”). 

 

1

 Although Casa De Capri Enterprises LLC, which is an Arizona limited liability company, is also named as a defendant in this matter, its presence does not destroy diversity jurisdiction. In Labertew v. Langemeier, 846 F.3d 1028 (9th Cir. 2017), the Ninth Circuit 

held that, in the unique context of a garnishment action that’s been removed from state 

court, complete diversity must exist only between the plaintiffs and the party served with the garnishment notice. Id. at 1032. In contrast, a “lack of diversity between” the plaintiffs and the defendant against whom judgment was entered in state court “is immaterial, 

because [the judgment debtor] is a nominal part[y] with nothing at stake.” Id. (citation and 

internal quotation marks omitted). 
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To cure this pleading deficiency, the Court will require the removing Defendant to 

file an amended notice of removal that affirmatively states Plaintiffs’ citizenship. Star Ins. 

Co. v. West, 2010 WL 3715155, *2 (D. Ariz. 2010); see also NewGen, LLC v. Safe Cig, 

LLC, 840 F.3d 606, 612 (9th Cir. 2016) (“Courts may permit parties to amend defective 

allegations of jurisdiction at any stage in the proceedings.”). Defendant is advised that its 

failure to timely comply with this order shall result in the remand of this action without 

further notice for lack of subject matter jurisdiction. 

Accordingly, IT IS ORDERED that removing Defendant Continuing Care Risk 

Retention Group Incorporated shall file an amended notice of removal properly stating a 

jurisdictional basis for this action no later than May 16, 2019. 

IT IS FURTHER ORDERED that if Defendant fails to file an amended notice of 

removal by May 16, 2019, the Clerk of Court shall remand this action to state court on 

May 17, 2019. 

 Dated this 9th day of May, 2019.