United States District Court, D. Nevada
GABRIEL M. BRISTOL, Plaintiff,
ELIZABETH JOAN HUGHES, et al., Defendants.
C. MAHAN UNITED STATES DISTRICT JUDGE
before the court is defendant Elizabeth Hughes's motion
to dismiss for lack of subject matter jurisdiction, pursuant
to Federal Rule of Civil Procedure 12(b)(1). (ECF No. 9).
Plaintiff Gabriel Bristol filed a response (ECF No. 16), but
defendant filed no reply.
March 30, 2016, plaintiff filed a complaint regarding the
course of dealings between himself and defendant, who
allegedly provided plaintiff with a $166, 886.00 loan to buy
a residence in Las Vegas. (ECF No. 1). Plaintiff requests
declaratory relief and alleges that defendant has breached
the lending contract as well as the implied covenant of good
faith and fair dealing due to defendant's alleged demand
for early payment of the full sum and alleged claim that
plaintiff “stole the loan proceeds rather than having
lawfully borrowed them.” (Id. at 9).
instant motion, defendant argues that this court has no
subject matter jurisdiction for two reasons: (1) plaintiff is
actually a non-diverse resident of Nevada; and (2) the amount
in controversy standard of 28 U.S.C. § 1332 is not
satisfied because, although the underlying debt is at least
$155, 286, only an additional sum of slightly more than $6,
600 is in dispute. (ECF No. 9). Plaintiff responds that
defendant's exhibits shows no admission of Nevada
residence, arguing instead that he is a California resident
who “owns investment properties here in Nevada, ”
and that the amount-in-controversy requirement is satisfied
because the full value of the loan, exceeding $160, 000, is
the applicable jurisdictional value. (ECF No. 16 at 7).
Rule of Civil Procedure 12(b)(1) allows a party to present
the defense of “lack of subject-matter
jurisdiction.” For a federal district court to have
diversity jurisdiction, 28 U.S.C. § 1332(a)(1) requires
that “the matter in controversy exceeds the sum or
value of $75, 000, exclusive of interest and costs” and
that the action be between “citizens of different
states.” Moreover, “a Rule 12(b)(1) motion can
attack the substance of a complaint's jurisdictional
allegations despite their formal sufficiency, and in so doing
rely on affidavits or any other evidence properly before the
court.” St. Clair v. City of Chico, 880 F.2d
199, 201 (9th Cir. 1989).
28 U.S.C. § 1332 requires diversity of citizenship,
which is not indicated by an individual's residence but
rather that person's place of domicile. Kanter v.
Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001).
“A person's domicile is her permanent home, where
she resides with the intention to remain or to which she
intends to return.” Id. (citing Lew v.
Moss, 797 F.2d 747, 749 (9th Cir. 1986)).
court's review of defendant's offered exhibits,
including subpoena requests or deposition notices, attorney
correspondence, and Clark County assessor records, neither
reveals an admission that plaintiff is a Nevada citizen nor
shows that plaintiff both resides and has the intent to
remain in Nevada. See Kanter, 265 F.3d at 857;
see also (ECF Nos. 9-1, 9-2, 9-3, 9-4, 9-5, 9-6).
Conversely, plaintiff offers evidence probative of his
jurisdictional allegation of diversity jurisdiction-an
attorney letter indicating a reluctance to travel from
northern California to Nevada for a deposition. See
(ECF No. 16-1); see also (ECF No. 1) (alleging that
28 U.S.C. § 1332(a)(1) applies and that “[e]very
issue of law and fact in this action is wholly between a
plaintiff who is a citizen of a state that is different from
that of defendant.”). Therefore, defendant's
argument that diversity of citizenship is not present fails.
(ECF No. 9).
“[i]n actions seeking declaratory or injunctive relief,
it is well established that the amount in controversy is
measured by the value of the object of the litigation.”
Cohn v. Petsmart, Inc., 281 F.3d 837, 840 (9th Cir.
2002) (quoting Hunt v. Wash. State Apple Adver.
Comm'n, 432 U.S. 333, 347, 97 S.Ct. 2434, 53 L.Ed.2d
plaintiff has requested declaratory relief. (ECF No. 1).
Further, both parties agree that the sum of the underlying
loan is at least $155, 286. See (ECF Nos. 1, 9, 16).
In this case, plaintiff seeks a declaration of his legal
rights, including inter alia that:
Mr. Bristol be adjudged to have lawfully borrowed the subject
loan proceeds; that the term of the loan is 30 years; that
the interest rate is 5 percent per year; that the amount of
the amortized monthly payment is $879.08; that no act or
omission to act may be attributed to Mr. Bristol causing an
event of default and, relatedly, that the loan has not been
accelerated and that the entire balance is not due; that Ms.
Hughes has prevented the performance of the loan by ...