United States District Court, W.D. Washington, Tacoma
CARLOS MENDOZA, individual, and as guardian of L.M., his minor child, Plaintiffs,
CITY OF VANCOUVER, a Municipality; VANCOUVER POLICE DEPARTMENT, an agent of the City of Vancouver; MONICA HERNANDEZ and “JOHN DOE” HERNANDEZ, husband and wife, individually and the marital community thereof; BARBARA KIPP and “JOHN DOE” KIPP, husband and wife and the martial community thereof, Defendants.
ORDER ON RESPONSES TO ORDER TO SHOW CAUSE AND
J. BRYAN, UNITED STATES DISTRICT JUDGE
matter comes before the Court on the parties' responses
to the August 29, 2017 Order to Show Cause. Dkts. 106 and
107. The Court has also considered the remaining record.
filed this case in Clark County, Washington Superior Court,
asserting that their federal constitutional rights and state
laws were violated when Plaintiff Carlos Mendoza was arrested
and Plaintiff L.M. was taken into protective custody. Dkt.
4-4. Plaintiffs seek damages as well as attorneys' fees
and costs. Id.
August 29, 2017, Defendants' motion for summary dismissal
of all federal claims (Dkt. 58) was granted; Plaintiffs'
motion for partial summary judgment, on the issues of whether
Defendant Hernandez had legal authority to arrest Plaintiff
Mendoza, whether Defendant Kipp had legal authority to take
L.M. into custody, and whether Defendant Kipp had cause to
believe L.M. had been neglected (Dkt. 68), was denied to the
extent those issues were related to Plaintiffs' federal
claims. Dkt. 105. To the extent both motions for summary
judgment addressed state law claims, those motions were
stricken, to be renoted if the Court determined it has
diversity jurisdiction. Id. The parties were ordered
to show cause, if any they had, why this Court had diversity
jurisdiction. Id. If this Court did not have
diversity jurisdiction, the parties were ordered to further
show cause, if any they had, why this case should not be
remanded to Clark County, Washington Superior Court.
Id. The parties have responded. Dkts. 106 and 107.
reasons provided, the Court concludes that it does not have
diversity jurisdiction and this case should be remanded.
RELEVANT FACTS AND PROCEDURAL HISTORY
background facts and procedural history are in the August 29,
2017, Order on Cross Motions for Summary Judgment and Other
Motions and Order to Show Cause (Dkt. 105, at 1-19) and are
relevant here, at the time the Complaint was filed, Plaintiff
Mendoza, an active duty U.S. Marine, was (and still is)
stationed in North Carolina. Dkt. 84. Plaintiff L.M. lives
with his father, Plaintiff Mendoza. Id. Plaintiff
Mendoza has a Washington State driver's license. Dkt.
106, at 8.
is a threshold issue that must be raised sua sponte.
Steel Co. v. Citizens for a Better Environment, 523
U.S. 83, 94-95 (1998). A federal court has original
jurisdiction over cases involving federal questions, 28
U.S.C. § 1332, or where the parties are diverse citizens
and the amount in controversy is over $75, 000, 28 U.S.C.
§ 1331. A federal court may also exercise supplemental
jurisdiction over state law claims asserted in cases in which
the court has original jurisdiction. 28 U.S.C. §
case was removed based on federal question jurisdiction. Dkt.
1, at 2. As discussed above, the federal claims have been
dismissed from the case. As the party asserting jurisdiction,
the Defendants have the burden of proof to demonstrate that
there is diversity jurisdiction. Kanter v. Warner-Lambert
Co., 265 F.3d 853, 857 (9th Cir. 2001).
have not shown that there is diversity of citizenship between
the parties. All Defendants are Washington residents. The
Complaint does not state whether Plaintiffs are still
residents of the state of Washington or whether they have
become residents of North Carolina. It provides that
Plaintiff Mendoza “was a married person . . . and
father of L.M., residing in Clark County Washington and
Onslow County, North Carolina.” Dkt. 20-1, at 8. The
diversity jurisdiction statute, 28 U.S.C. § 1332, speaks
of citizenship, not of state of residency. Kanter v.
Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001).
“A person's state citizenship is determined by
[their] state of domicile, not [their] state of residence. A
person's domicile is [their] permanent home, where [they]
reside with the intention to remain or to which [they]
intend to return.” Id. A person is not
necessarily a citizen of the state in which they reside for
purposes of the jurisdictional statute. Id. As
Defendants' properly point out “'[s]ervice
personnel are presumed not to acquire a new domicile when
they are stationed in a place pursuant to orders; they retain
the domicile they had at the time of entry into the
services.'” Dkt. 106, at 2 (quoting Sarver v.
Chartier, 813 F.3d 891, 898 (9th Cir. 2016).
the presumption is rebuttable, it has not be rebutted here.
Plaintiff Mendoza is active duty military stationed North
Carolina. While he may have expressed doubt at returning to
Washington State, Washington is his last known domicile. Dkt.
106, at 8. There is no evidence in the record that he owns
property in North Carolina, is registered to vote in North
Carolina, or intends to stay there. Defendants' ...