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Mendoza v. City of Vancouver

United States District Court, W.D. Washington, Tacoma

September 11, 2017

CARLOS MENDOZA, individual, and as guardian of L.M., his minor child, Plaintiffs,
v.
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 REMANDING CASE

          ROBERT J. BRYAN, UNITED STATES DISTRICT JUDGE

         This 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.

         Plaintiffs 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.

         On 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.

         For the reasons provided, the Court concludes that it does not have diversity jurisdiction and this case should be remanded.

         I. RELEVANT FACTS AND PROCEDURAL HISTORY

         The 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 adopted here.

         As is 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.

         II. DISCUSSION

         Jurisdiction 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. § 1367(a).

         A. ORIGINAL JURISDICTION

         This 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).

         Defendants 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).

         While 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' ...


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