Colston v. Allstate Vehicle Property and Insurance Company

• Court: District Court, D. Arizona
• Decided: August 4, 2025
• Docket: 2:25-cv-01052
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Ebbie Colston, et al., No. CV-25-01052-PHX-DWL

10 Plaintiffs, ORDER

11 v.

12 Allstate Vehicle Property and Insurance Company, et al., 13 Defendants. 14 15 On March 31, 2025, Defendant removed this action from Maricopa County Superior 16 Court, purportedly on the basis of diversity jurisdiction. (Doc. 1.) However, in an April 17 21, 2025 order, the Court noted that the jurisdictional allegations in the removal notice 18 were insufficient to establish complete diversity for various reasons, including that the 19 removal notice only alleged the state of residence (rather than the state of domicile) for 20 each Plaintiff. (Doc. 6.) This order specifically cited the on-point Ninth Circuit authority 21 explaining that a “natural person’s state citizenship is . . . determined by her state of 22 domicile, not her state of residence.” (Id. at 3, citation omitted.) Rather than remand the 23 action at that time, the Court gave Defendant the opportunity to file an amended removal 24 notice. (Id.) 25 On May 1, 2025, Defendant filed an amended removal notice, but Defendant failed 26 to heed the guidance provided in the April 21, 2025 order and once again alleged only that 27 “Plaintiffs are residents of Arizona.” (Doc. 7 at 3.) Rather than remand the action at that 28 time, the Court issued an order that gave “Defendant one final opportunity to correct the 1 deficiency. . . . Defendant must file a second amended removal notice that properly states 2 a jurisdictional basis for this action. Failure to do so will result in remand of this action to 3 Maricopa County Superior Court.” (Doc. 12.) 4 Defendant has now filed a second amended removal notice, which includes the 5 following allegation regarding Plaintiffs: “Plaintiffs are residents of Arizona, domiciled at 6 [a particular address in] Mesa, Arizona 85213.” (Doc. 13 at 3.) Although this verbiage 7 differs from the verbiage of the previous two removal notices in that it uses the word 8 “domiciled,” the allegation that Plaintiffs are “domiciled” at a specific residential address 9 appears to use the term “domiciled” as a synonym for “residing,” thus repeating the same 10 deficiency found in the original notice of removal and first amended notice of removal. 11 For diversity purposes, a person is domiciled in a state, not at a particular residential 12 address. Kanter v. Warner-Lambert Co., 265 F.3d 853, 857-58 (9th Cir. 2001) (“Plaintiffs’ 13 complaint and Pfizer’s notice of removal both state that Plaintiffs were ‘residents’ of 14 California. But the diversity jurisdiction statute, 28 U.S.C. § 1332, speaks of citizenship, 15 not of residency. To be a citizen of a state, a natural person must first be a citizen of the 16 United States. The natural person’s state citizenship is then determined by her state of 17 domicile, not her state of residence. A person’s domicile is her permanent home, where 18 she resides with the intention to remain or to which she intends to return. A person residing 19 in a given state is not necessarily domiciled there, and thus is not necessarily a citizen of 20 that state. In this case, neither Plaintiffs’ complaint nor Pfizer’s notice of removal made 21 any allegation regarding Plaintiffs’ state citizenship. Since the party asserting diversity 22 jurisdiction bears the burden of proof, Pfizer’s failure to specify Plaintiffs’ state citizenship 23 was fatal to Defendants’ assertion of diversity jurisdiction.”) (cleaned up); King v. Great 24 Am. Chicken Corp, Inc., 903 F.3d 875, 879 (9th Cir. 2018) (“A person’s state of citizenship 25 is established by domicile, not simply residence, and a residential address in California 26 does not guarantee that the person’s legal domicile was in California.”). 27 It is clear from relevant case law that, for diversity jurisdiction purposes, a person’s 28 “permanent home” is the state where he or she intends to remain, Kanter, 265 F.3d at 857- 1 58, not a physical residential address, which may be freely abandoned in favor of another 2 residence within the same state without disturbing state citizenship. Defendant still alleges 3 that “Plaintiffs are residents of Arizona,” pairing this inadequate allegation with an 4 apparent misuse of a term of art by indicating that Plaintiffs are “domiciled” at the address 5 where they reside. Courts have concluded that this approach is ineffective to establish the 6 existence of diversity jurisdiction. Ameris Bank v. 703 Bakery Corp., 2024 WL 3298754, 7 *1 (C.D. Cal. 2024) (“[T]he 1st AC does not allege sufficient facts to support the Court’s 8 exercise of diversity jurisdiction over this action. Specifically, the 1st AC, like the original 9 Complaint, alleges that Oleg Azizov ‘is and at all times relevant to this action was a resident 10 of the State of New York, County of Kings . . . .’ Because an individual is not necessarily 11 domiciled where he or she resides, Plaintiff’s allegation concerning the residence of Oleg 12 Azizov is insufficient to plausibly allege his citizenship. The 1st AC additionally alleges 13 that Oleg Azizov ‘is a resident of the State of New York, and based on information and 14 belief, including the Driver’s License submitted by Azizov to Balboa, Azizov is domiciled 15 [at an address in] Brooklyn, New York . . . .’ This allegation repeats, insufficiently, that 16 Oleg Azizov ‘is a resident’ of New York before conclusorily alleging that he is domiciled 17 there, without indicating that Plaintiff understands the distinction between a residence and 18 a domicile.”). 19 The pleading standard for alleging the citizenship of an individual is not onerous. 20 Indeed, it is enough to allege that an individual is “a citizen of” a certain state. Harris v. 21 Rand, 682 F.3d 846, 850 (9th Cir. 2012) (quoting Fed. R. Civ. P. Form 7(a)); see also Fifty 22 Assocs. v. Prudential Ins. Co. of Am., 446 F.2d 1187, 1190 (9th Cir. 1970) (“An allegation 23 that an individual is a citizen of a certain state is an allegation of fact.”). Citizenship may 24 even be pleaded on information and belief “where the facts supporting jurisdiction are not 25 reasonably ascertainable by the plaintiff.” Carolina Cas. Ins. Co. v. Team Equip., Inc., 741 26 F.3d 1082, 1087 (9th Cir. 2014). Nevertheless, “alleging diversity jurisdiction based on 27 residency rather than citizenship” is a defect that must be corrected. Id. at 1086.1

28 1 Under the “less stringent standards” applicable to pro se pleadings, “allowance” can sometimes be made for technically deficient allegations where diversity can otherwise be 1 Leave to amend should be freely given to cure such defects. Jd. However, in a || situation like this one, where leave to amend has already been granted twice and even after || three attempts to properly plead jurisdictional allegations, Defendant has failed to do so, remand is warranted. 5 Accordingly, 6 IT IS ORDERED that this action is remanded to Maricopa County Superior Court. 7 Dated this Ist day of August, 2025. 8 5 . 9 } VL i — 10 Dominic W. Lanza United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 inferred from the contents of the pleading. Mann v. City of Tucson, Dep’t of Police, 782 F.2d 790, 794 (9th Cir. 1986). But here, Defendant is represented by counsel, so no such allowance is due.

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