Baymiller v. Guarantee Mutual Life Co.

31 F. App'x 479

Opinion

ORDER

**

Plaintiff-appellants, purchasers of insurance policies issued by defendant-appellees, appeal the district court’s dismissal with prejudice of their action for failure to state a claim upon which relief may be granted. We have jurisdiction pursuant to 28 U.S.C. § 1291.¹

On appeal, plaintiffs argue for the first time that the district court lacked subject matter jurisdiction. The answering defendants argue that both diversity and federal question jurisdiction exist, and ask in the alternative that we remand to the district court to allow fact-finding and amendment of the pleadings to determine whether jurisdiction existed.

The current record does not permit us to determine whether the district court had jurisdiction. The removed complaint is the relevant complaint for jurisdictional purposes. Toumajian v. Frailey, 135 F.3d 648, 653 n. 2 (9th Cir.1998). The complaint we consider seeks unspecified damages and other relief but wholly fails to plead an amount in controversy or an explicit federal question. The uncontested notice of removal contains entirely conclusory allegations. No ground for federal jurisdiction is facially apparent. See Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373, 377 (9th Cir.1997).

Defendants had no opportunity to contest any claimed lack of jurisdiction in the district court, plaintiffs ignored the issue until judgment was entered against them, and the district court has never addressed the subject at all. We vacate the judgment and remand to the district court with instructions to conduct fact-finding, see id., and permit amendment of the pleadings to clarify whether subject-matter jurisdiction existed when the case was removed. Luehrs v. Utah Home Fire Ins. Co., 450 F.2d 452, 454 (9th Cir.1971).

The parties shall each bear their own costs on appeal.

VACATED and REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.

1 . The fictitious "Doe” defendants listed in the complaint were never formally dismissed. The district court's order granting the named defendants' motion to dismiss is nevertheless final and appealable. Patchick v. Kensington Publ’g Corp., 743 F.2d 675, 677 (9th Cir. 1984).