1 2 3 4 5 IN THE DISTRICT COURT OF GUAM 6 A.A. ) CIVIL CASE NO. 21-00029 7 ) Plaintiff, ) 8 ) vs. ) 9 ) REPORT AND RECOMMENDATION DANNY DIAL, et al., ) re Motion to Dismiss for Lack of Jurisdiction 10 ) (ECF No. 34) Defendants. ) 11 ) 12 13 Pending before the court is a Motion to Dismiss for Lack of Jurisdiction (the “Motion to 14 Dismiss”). See Mot. Dismiss, ECF No. 34. The motion is fully briefed, and the court finds that oral 15 argument is unnecessary. Having reviewed the pertinent filings and relevant case law and authority, 16 the court issues the following Report and Recommendation to grant the Motion to Dismiss without 17 prejudice but allow the Plaintiff to file an amended complaint. 18 I. BACKGROUND 19 A. Plaintiff’s Allegations 20 On December 31, 2021, the Plaintiff initiated this action by the filing of a Complaint alleging 21 that he had been sexually assaulted in June 2012 while he was 16 years old by defendant Danny Dial, 22 whom the Plaintiff claimed was then the Director of the Seventh Day Adventist (“SDA”) Guam 23 Micronesia Mission (“GMM”) Education. See Compl. at ¶¶ 4-5 and 24-26. The Plaintiff alleged 24 he later reported the assault to defendants Steven Silva (the Pastor of the GMM) and Louis Torres 25 (the President of GMM). Id. at ¶¶ 7-8 and 29-33. The Complaint further asserted that neither Silva, 26 Torres nor the GMM SDA Church (the "Church") reported Plaintiff’s allegations to the Guam 27 Police Department or the Child Protective Services and that said defendants helped Dial flee 28 Guam. Id. at ¶ 34. 1 The Complaint did not specifically identify the grounds for the court’s jurisdiction. The 2 Complaint simply asserted that the Plaintiff was “a U.S. citizen and presently a resident of the State 3 of California.” The Complaint failed to allege the citizenship of any of the defendants. 4 B. Service on Dial 5 At the First Preliminary Pretrial Conference on September 8, 2022, the court inquired how 6 Plaintiff’s counsel wished to proceed with defendant Dial, who had not yet been served nor had he 7 made an appearance in the case. See Minutes, ECF No. 13. Plaintiff’s counsel replied that the 8 Plaintiff was in search of Dial and intended to serve him. The court then instructed Plaintiff’s 9 counsel to file a proper motion pursuant to Rule 4(m) to request additional time to serve Dial. 10 On October 7, 2022, the Plaintiff filed a Motion to Extend Deadline to Serve Defendant Dial. 11 See ECF No. 15. According to the motion and the supporting declaration, counsel for defendants 12 Torres, Silva and the Church (collectively, the “Defendants”) had informed Plaintiff’s counsel that 13 Dial was terminated from the Church’s employment in June 2012, and the Defendants believed that 14 he may be located in the Philippines or in Loma Linda, California. See Decl. David J. Lujan at ¶¶ 7- 15 9, ECF No. 17. The Plaintiff hired an investigator who confirmed Dial’s address in Loma Linda. 16 The Plaintiff thus requested an additional 60 days to serve Dial. 17 On October 28, 2022, the court granted the Plaintiff’s request for an extension and ordered 18 that Plaintiff effect service on Defendant Dial within 60 days from the Clerk’s entry of said Order. 19 See Order, ECF No. 20. 20 On January 12, 2023, the parties appeared before the court for a Second Preliminary Pretrial 21 Conference, at which time Plaintiff’s counsel gave an update on the Plaintiff’s unsuccessful attempts 22 to serve Dial. See Minutes, ECF No. 22. Counsel requested a further extension of time to serve 23 Mr. Dial and expressed an interest in seeking permission to serve him by publication. The court then 24 instructed counsel to file appropriate motions seeking an extension and/or service by publication. 25 On March 1, 2023, the Plaintiff filed a Status Report indicating the Plaintiff’s further attempts 26 to locate and serve Dial in February 2023. See ECF No. 30. 27 At the status hearing held on March 9, 2023, the court ordered the Plaintiff’s counsel to file 28 a motion to serve Dial by publication within 14 days from the hearing or else the court would 1 recommend that Dial be dismissed from this action without prejudice. See Minutes, ECF No. 32. 2 In lieu of filing said motion, on July 5, 2023, the Plaintiff voluntarily dismissed all claims 3 against Dial without prejudice. See Notice of Voluntary Dismissal, ECF No. 40. 4 C. Filing of Instant Motion 5 On March 10, 2023, the Defendantsfiled the instant Motion to Dismiss, along with a 6 supporting memorandum and the declaration of Silva. See ECF No. 34. The Defendants argued that 7 dismissal was warranted because (1) the Complaint failed to affirmatively plead subject matter 8 jurisdiction, (2) assuming the Plaintiff would assert diversity jurisdiction, diversity did not exist since 9 the Plaintiff and Silva were both citizens of California when the Complaint was filed, and (3) the 10 Plaintiff’s failure to ascertain Dial’s residence forecloses complete diversity between the parties.1 11 Mem. P. & A. Supp. Mot. Dismiss at 1-2, ECF No. 34-1. 12 On March 14, 2023, the Motion to Dismiss for Lack of Jurisdiction was referred to the below- 13 signed judge. See Order, ECF No. 35. 14 On March 31, 2023, the Plaintiff filed his Opposition to the motion. See ECF No. 36. The 15 Plaintiff conceded that although the Complaint failed to affirmatively state the basis for federal 16 jurisdiction, diversity jurisdiction did in fact exist since the Plaintiff was a citizen of Michigan, not 17 California. The Plaintiff asserted that leave to amend should be given to correct this oversight. 18 On April 14, 2023, the Defendants filed their Reply to the Opposition. See ECF No. 38. 19 II. LEGAL STANDARD 20 Because federal courts are courts of limited jurisdiction, they “possess only that power 21 authorized by the Constitution and statute[.]” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 22 375, 377 (1994). Rule 8 requires that a complaint contain “a short and plain statement of the 23 grounds for the court’s jurisdiction[.]” Fed. R. Civ. P. 8(a)(1). A party may seek dismissal of an 24 action for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). 25 Federal courts have original jurisdiction over civil actions where the amount in controversy 26 27 1 Because the Plaintiff has voluntarily dismissed Dial from this action, see ECF No. 40, this 28 argument is moot and will not be further addressed in this Report and Recommendation. 1 exceeds $75,000 and involves citizens of different states. 28 U.S.C. § 1332(a)(1). As the party 2 asserting jurisdiction, the plaintiff bears the burden of establishing diversity of citizenship by a 3 preponderance of the evidence. See Kanter v Warner-Lambert Co., 265 F.3d 853, 857-58 (9th Cir. 4 2001); Gaus v Miles, Inc., 980 F.2d 564, 567 (9th Cir. 1992). “[F]ailure to specify . . . state 5 citizenship [is] fatal to [an] assertion of diversity jurisdiction.” Kanter, 265 F.3d at 858. 6 III. DISCUSSION 7 A. Whether the Complaint sufficiently stated grounds for jurisdiction 8 The Plaintiff concedes that the Complaint “did not present a federal question and that subject 9 matter jurisdiction . . . is based on diversity of citizenship under 28 U.S.C. § 1332.” Pl.’s Opp’n at 2, 10 ECF No. 36.
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1 2 3 4 5 IN THE DISTRICT COURT OF GUAM 6 A.A. ) CIVIL CASE NO. 21-00029 7 ) Plaintiff, ) 8 ) vs. ) 9 ) REPORT AND RECOMMENDATION DANNY DIAL, et al., ) re Motion to Dismiss for Lack of Jurisdiction 10 ) (ECF No. 34) Defendants. ) 11 ) 12 13 Pending before the court is a Motion to Dismiss for Lack of Jurisdiction (the “Motion to 14 Dismiss”). See Mot. Dismiss, ECF No. 34. The motion is fully briefed, and the court finds that oral 15 argument is unnecessary. Having reviewed the pertinent filings and relevant case law and authority, 16 the court issues the following Report and Recommendation to grant the Motion to Dismiss without 17 prejudice but allow the Plaintiff to file an amended complaint. 18 I. BACKGROUND 19 A. Plaintiff’s Allegations 20 On December 31, 2021, the Plaintiff initiated this action by the filing of a Complaint alleging 21 that he had been sexually assaulted in June 2012 while he was 16 years old by defendant Danny Dial, 22 whom the Plaintiff claimed was then the Director of the Seventh Day Adventist (“SDA”) Guam 23 Micronesia Mission (“GMM”) Education. See Compl. at ¶¶ 4-5 and 24-26. The Plaintiff alleged 24 he later reported the assault to defendants Steven Silva (the Pastor of the GMM) and Louis Torres 25 (the President of GMM). Id. at ¶¶ 7-8 and 29-33. The Complaint further asserted that neither Silva, 26 Torres nor the GMM SDA Church (the "Church") reported Plaintiff’s allegations to the Guam 27 Police Department or the Child Protective Services and that said defendants helped Dial flee 28 Guam. Id. at ¶ 34. 1 The Complaint did not specifically identify the grounds for the court’s jurisdiction. The 2 Complaint simply asserted that the Plaintiff was “a U.S. citizen and presently a resident of the State 3 of California.” The Complaint failed to allege the citizenship of any of the defendants. 4 B. Service on Dial 5 At the First Preliminary Pretrial Conference on September 8, 2022, the court inquired how 6 Plaintiff’s counsel wished to proceed with defendant Dial, who had not yet been served nor had he 7 made an appearance in the case. See Minutes, ECF No. 13. Plaintiff’s counsel replied that the 8 Plaintiff was in search of Dial and intended to serve him. The court then instructed Plaintiff’s 9 counsel to file a proper motion pursuant to Rule 4(m) to request additional time to serve Dial. 10 On October 7, 2022, the Plaintiff filed a Motion to Extend Deadline to Serve Defendant Dial. 11 See ECF No. 15. According to the motion and the supporting declaration, counsel for defendants 12 Torres, Silva and the Church (collectively, the “Defendants”) had informed Plaintiff’s counsel that 13 Dial was terminated from the Church’s employment in June 2012, and the Defendants believed that 14 he may be located in the Philippines or in Loma Linda, California. See Decl. David J. Lujan at ¶¶ 7- 15 9, ECF No. 17. The Plaintiff hired an investigator who confirmed Dial’s address in Loma Linda. 16 The Plaintiff thus requested an additional 60 days to serve Dial. 17 On October 28, 2022, the court granted the Plaintiff’s request for an extension and ordered 18 that Plaintiff effect service on Defendant Dial within 60 days from the Clerk’s entry of said Order. 19 See Order, ECF No. 20. 20 On January 12, 2023, the parties appeared before the court for a Second Preliminary Pretrial 21 Conference, at which time Plaintiff’s counsel gave an update on the Plaintiff’s unsuccessful attempts 22 to serve Dial. See Minutes, ECF No. 22. Counsel requested a further extension of time to serve 23 Mr. Dial and expressed an interest in seeking permission to serve him by publication. The court then 24 instructed counsel to file appropriate motions seeking an extension and/or service by publication. 25 On March 1, 2023, the Plaintiff filed a Status Report indicating the Plaintiff’s further attempts 26 to locate and serve Dial in February 2023. See ECF No. 30. 27 At the status hearing held on March 9, 2023, the court ordered the Plaintiff’s counsel to file 28 a motion to serve Dial by publication within 14 days from the hearing or else the court would 1 recommend that Dial be dismissed from this action without prejudice. See Minutes, ECF No. 32. 2 In lieu of filing said motion, on July 5, 2023, the Plaintiff voluntarily dismissed all claims 3 against Dial without prejudice. See Notice of Voluntary Dismissal, ECF No. 40. 4 C. Filing of Instant Motion 5 On March 10, 2023, the Defendantsfiled the instant Motion to Dismiss, along with a 6 supporting memorandum and the declaration of Silva. See ECF No. 34. The Defendants argued that 7 dismissal was warranted because (1) the Complaint failed to affirmatively plead subject matter 8 jurisdiction, (2) assuming the Plaintiff would assert diversity jurisdiction, diversity did not exist since 9 the Plaintiff and Silva were both citizens of California when the Complaint was filed, and (3) the 10 Plaintiff’s failure to ascertain Dial’s residence forecloses complete diversity between the parties.1 11 Mem. P. & A. Supp. Mot. Dismiss at 1-2, ECF No. 34-1. 12 On March 14, 2023, the Motion to Dismiss for Lack of Jurisdiction was referred to the below- 13 signed judge. See Order, ECF No. 35. 14 On March 31, 2023, the Plaintiff filed his Opposition to the motion. See ECF No. 36. The 15 Plaintiff conceded that although the Complaint failed to affirmatively state the basis for federal 16 jurisdiction, diversity jurisdiction did in fact exist since the Plaintiff was a citizen of Michigan, not 17 California. The Plaintiff asserted that leave to amend should be given to correct this oversight. 18 On April 14, 2023, the Defendants filed their Reply to the Opposition. See ECF No. 38. 19 II. LEGAL STANDARD 20 Because federal courts are courts of limited jurisdiction, they “possess only that power 21 authorized by the Constitution and statute[.]” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 22 375, 377 (1994). Rule 8 requires that a complaint contain “a short and plain statement of the 23 grounds for the court’s jurisdiction[.]” Fed. R. Civ. P. 8(a)(1). A party may seek dismissal of an 24 action for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). 25 Federal courts have original jurisdiction over civil actions where the amount in controversy 26 27 1 Because the Plaintiff has voluntarily dismissed Dial from this action, see ECF No. 40, this 28 argument is moot and will not be further addressed in this Report and Recommendation. 1 exceeds $75,000 and involves citizens of different states. 28 U.S.C. § 1332(a)(1). As the party 2 asserting jurisdiction, the plaintiff bears the burden of establishing diversity of citizenship by a 3 preponderance of the evidence. See Kanter v Warner-Lambert Co., 265 F.3d 853, 857-58 (9th Cir. 4 2001); Gaus v Miles, Inc., 980 F.2d 564, 567 (9th Cir. 1992). “[F]ailure to specify . . . state 5 citizenship [is] fatal to [an] assertion of diversity jurisdiction.” Kanter, 265 F.3d at 858. 6 III. DISCUSSION 7 A. Whether the Complaint sufficiently stated grounds for jurisdiction 8 The Plaintiff concedes that the Complaint “did not present a federal question and that subject 9 matter jurisdiction . . . is based on diversity of citizenship under 28 U.S.C. § 1332.” Pl.’s Opp’n at 2, 10 ECF No. 36. The instant Complaint did not sufficiently identify the state citizenship of the parties, 11 and said failure is fatal to the Plaintiff’s assertion that this court has diversity jurisdiction. While the 12 court must recommend that the Complaint be dismissed for lack of diversity jurisdiction, the court 13 must next determine whether dismissal should be with or without prejudice. 14 B. Whether amendment would be futile 15 The Ninth Circuit has cautioned that a “complaint should not be dismissed without leave to 16 amend unless amendment would be futile.” Carolina Cas. Ins. Co. v. Team Equipment, Inc., 741 17 F.3d 1082, 1086 (2014) (citing McQuillion v. Schwarzenegger, 369 F.3d 1091, 1099 (9th Cir. 18 2004)). This is consistent with the policy of the federal rules that a court should “freely give leave” 19 to amend a complaint “when justice so requires.” Fed. R. Civ. P. 15(a)(2). 20 The Plaintiff argues that he should be given leave to amend to correct the defective 21 jurisdictional allegations. The Defendants agree that the court “should provide Plaintiff the 22 opportunity to correct any jurisdictional defects to the extent they are curable.” Defs.’s Reply at 6, 23 ECF No. 38. The Defendants, however, assert that amendment is futile since the Plaintiff and 24 defendant Silva2 were both citizens of California at the time the Complaint was filed. Mot. Dismiss 25 at 34. The Defendants further contend that the Plaintiff’s self-serving declaration fails to establish 26 27 2 Silva was a resident of Oakhurst, California when the Complaint was filed and still resides there today. Decl. Steven Silva at ¶¶ 3 and 5, ECF No. 34-2. Silva asserts that it is his intention to 28 continue living and working in California for the foreseeable future. Id. at ¶ 6. 1 diversity between the parties. 2 The Complaint alleged the Plaintiff was “presently a resident . . . of California.” Compl. at 3 ¶ 2, ECF No. 1. He now asserts he that “at the time of the filing of the Complaint on December 31, 4 2021, Plaintiff was a citizen of Michigan.” Pl.’s Opp’n at 3, ECF No. 36. According to the 5 Plaintiff’s declaration, he lived in Michigan from 2013 to 2021, where he attended and graduated 6 from high school and undergraduate college. Decl. of Pl. at ¶ 3, ECF No. 37. He also attended 7 graduate school in Michigan and worked there from about 2014 to late 2021. Id. In May 2021, he 8 moved to California to work for an employer on a one-year contract. Id. at ¶ 4. The Plaintiff claims 9 he “never intended to live and work in California indefinitely[,]” and that it was his “intention to 10 return to Michigan in 2022 to live and work there.” Id. at ¶ 5. While living in California, he began 11 applying for jobs in Michigan about July or August 2021, and was offered a job in Michigan in 12 September 2021. Id. at ¶ 6. The Plaintiff asserts that after his one-year contract in California ended, 13 he returned back to Michigan in June 2022 and began his employment there. Id. at ¶ 7. The Plaintiff 14 states that he plans to continue working and living in Michigan in his sister’s home and that he has 15 no plans to leave Michigan for the foreseeable future. Id. at ¶¶ 7-8. 16 The Defendants ask the court to view the Plaintiff’s self-serving declaration with skepticism. 17 The Defendants assert that the original Complaint does not make any reference to the Plaintiff’s ties 18 to Michigan. The Defendants surmise this omission may be related to the fact that Silva’s Linkedin 19 profile page includes a reference that Silva is an “Ordained Minister at Michigan Conference of 20 Seven Day Adventists,” leading the Plaintiff to suspect that Silva was a citizen of Michigan. Defs.’s 21 Reply at 4, ECF No. 39. The Defendants argue that the Plaintiff intentionally asserted he was a 22 resident of California in the Complaint in order to “manufacture diversity jurisdiction.” Id. The 23 Defendants also claim that discovery has revealed other facts that tend to indicate that the Plaintiff 24 had no intention of living in Michigan permanently. For instance, before leaving for California in 25 2021, the Plaintiff allegedly told his therapist that he “will be relocating permanently to California.” 26 Id. at 5 (emphasis in original). Additionally, the Plaintiff applied to a law school in Arizona six 27 months before moving to California. Id. The Defendants assert that these facts make the Plaintiff’s 28 assertions in his declaration less credible. 1 A person’s state of citizenship is determined by his state of domicile, not his state of residence. 2 Kanter, 265 F.3d at 857 (emphasis added). “A person’s domicile is [his] permanent home, where 3 [he] resides with the intention to remain or to which [he] intends to return. A person residing in a 4 given state is not necessarily domiciled there, and thus is not necessarily a citizen of that state.” Id. 5 (internal citation omitted). Additionally, “a person’s old domicile is not lost until a new one is 6 acquired. A change in domicile requires the confluence of (a) physical presence at the new location 7 with (b) an intention to remain there indefinitely.” Lew v. Moss, 797 F.2d 747, 750 (9th Cir. 1986). 8 Having reviewed the Plaintiff’s declaration and considered the arguments raised in the 9 Defendants’ Reply, the court finds that the Plaintiff has established by a preponderance of the 10 evidence that there is diversity of citizenship between himself and defendant Silva. Before moving 11 to California for employment on a one-year contract, the Plaintiff resided in Michigan for 12 approximately eight years. He graduated from high school and college in Michigan and also 13 attended graduate school there. While he allegedly told a therapist that he was permanently 14 relocating to California, the Plaintiff’s declaration also explained that before moving to California 15 in May 2021, he learned that his sister was pregnant. Pl.’s Decl. at ¶ 5, ECF No. 37. His intent was 16 to return to Michigan after his one-year job in California so that he could live with his sister in her 17 Michigan home. Id. He said that his “support network” was in Michigan, id. at ¶ 7, and that his 18 sister was his “only immediate family member to live in the U.S. mainland.” Id. at ¶ 5. The court 19 finds that the Plaintiff has met his burden of establishing that he was domiciled in Michigan and he 20 did not lose said domicile when he moved temporarily to California. The mere fact that the Plaintiff 21 may have applied to law school in Arizona does not change his domicile. Accordingly, the court 22 finds that amendment would not be futile, so the Plaintiff should be allowed to file an amended 23 complaint that corrects the defective jurisdictional allegations. 24 /// 25 /// 26 /// 27 /// 28 /// AA vy. Danny Dial, et al., Civil Case No. 21-00029 Report and Recommendation re Motion to Dismiss for Lack of Jurisdiction page 7 of 7 1] IV. RECOMMENDATION 2 Based on the above discussion, the court recommends that the District Judge (1) grant the 3 | Motion to Dismiss for Lack of Jurisdiction, (2) dismiss the Complaint without prejudice and (3) give 4 || the Plaintiff leave to file an amended complaint to cure technical defects alleging complete diversity 5 || jurisdiction between the parties. 6 IT IS SO RECOMMENDED. re , /s/ Michael J. Bordallo I U.S. Magistrate Judge g □□ gis” A Dated: Jul 18, 2023 9 10 11 NOTICE Failure to file written objections to this Report and Recommendation within 12 fourteen (14) days from the date of its service shall bar an aggrieved party from attacking such Report and Recommendation before the assigned United States 13 District Judge. 28 U.S.C. § 636(b)(1)(B). 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28