United States District Court, W.D. Washington, Seattle
BRETT D. MCDONALD, Plaintiff,
BORA GURSON, et al., Defendants.
ORDER TO SHOW CAUSE
L. ROBART United States District Judge.
April 19, 2017, Plaintiff Brett McDonald filed a complaint in
this court. (Compl. (Dkt. # 1).) Five days later, Mr.
McDonald removed under this cause number a similarly
captioned state court action in which he has been named as a
defendant. (Not. of Rem. (Dkt. # 3) at 1; see also
id., Ex. BB (“State Ct. Compl.”).) The court
reviewed Mr. McDonald's complaint and notice of removal
and finds problems with both filings.
BACKGROUND & ANALYSIS
Subject Matter Jurisdiction
the court finds that Mr. McDonald's complaint
inadequately demonstrates the court's subject matter
jurisdiction. Mr. McDonald, proceeding pro se,
invokes diversity of citizenship as the basis for subject
matter jurisdiction. (See Id. ¶ 7 (citing 28
U.S.C. § 1332).) “Section 1332 requires complete
diversity of citizenship; each of the plaintiffs must be a
citizen of a different state than each of the
defendants.” Morris v. Princess Cruises, Inc.,
236 F.3d 1061, 1067 (9th Cir. 2001). The complaint names as
defendants Bora Gurson, RoxyCar Inc., John Doe LLCs, and John
Doe Corporations. (Compl. at 1.) Mr. McDonald alleges that he
is a resident of Washington, Mr. Gurson is a Hawaii resident,
and RoxyCar is incorporated in Delaware with its principal
place of business in Hawaii. (Id. ¶¶ 4-6.)
However, Mr. McDonald does not allege the domicile of John
Doe LLCs and John Doe Corporations.
fictitious defendants are not considered for purposes of
complete diversity in the removal context, see 28
U.S.C. § 1441(b)(1),  there is no comparable provision for
diversity jurisdiction more generally, see 28 U.S.C.
§ 1332. Thus, complete diversity between Mr. McDonald
and the defendants is not clear from the face of the
complaint. See Medina v. Chas Roberts Air Conditioning,
Inc., No. CV 05-4214-PHX-SMM, 2006 WL 2091665, at *6 (D.
Ariz. July 24, 2006) (citing Fifty Assocs. v. Prudential
Life Ins. Co. of Am., 446 F.2d 1187, 1191 (9th Cir.
1970)) (“The Ninth Circuit has rejected naming
‘Doe' defendants in diversity actions, on the
grounds that complete diversity cannot exist if the identity
and citizenship of some defendants (i.e., the
‘Does') are unknown.”). The apparent lack of
complete diversity renders this court without jurisdiction to
hear Mr. McDonald's claims. See Morris, 236 F.3d at
light of the court's inability to discern whether
complete diversity exists, the court orders Mr. McDonald to
show cause within fourteen (14) days of the entry of this
order why his complaint should not be dismissed for lack of
subject matter jurisdiction. Mr. McDonald's response
shall be no longer than five (5) pages. To the extent Mr.
McDonald's response alters the allegations or parties to
this action, he must amend his complaint
accordingly. If Mr. McDonald fails to timely comply
with this order or otherwise fails to demonstrate the
court's subject matter jurisdiction, the court will
dismiss the case without prejudice.
Notice of Removal
McDonald improperly removed under this cause number the state
court action. Instead of doing so, Mr. McDonald should have
filed the notice of removal under a new cause number and paid
the applicable filing fee. Accordingly, the court directs the
Clerk to open a new cause number and file the notice of
removal in that case and Mr. McDonald to pay the filing fee
in that case within seven days. The court cautions Mr.
McDonald that if he does not pay the filing fee within seven
days, the case may be dismissed. If he wishes, Mr. McDonald
may note on the civil cover sheet for the removed action that
it is related to this cause number.
court ORDERS Mr. McDonald to show cause within fourteen (14)
days of the entry of this order why his complaint should not
be dismissed for lack of subject matter jurisdiction. Mr.
McDonald's response shall be no longer than five (5)
pages. If Mr. McDonald fails to timely comply with this order
or otherwise fails to demonstrate the court's subject
matter jurisdiction, the court will dismiss this case without
prejudice. The court also DIRECTS the Clerk to open a new
cause number and file the notice of removal (Dkt. # 3) under
that number. The court further DIRECTS Mr. McDonald to pay
the filing fee in that case within seven (7) days of the
entry of this order. If Mr. McDonald does not pay the filing
fee by that date, the case may be dismissed.