United States District Court, D. Nevada
M. Navarro, Chief Judge United States District Judge
before the Court is the Motion to Dismiss, (ECF No. 5), filed
by Defendants Dr. Julie F. Beasley and Julie F. Beasley,
Ph.D., Inc. (collectively “Defendants”).
Plaintiff Amy Stipp (“Plaintiff”) filed a
Response, (ECF No. 6), and Defendants filed a Reply, (ECF No.
8). For the reasons discussed below, the Court GRANTS
Defendants' Motion to Dismiss.
instant action is the latest in a series of cases involving
similar parties and facts. Plaintiff and her husband,
Mitchell D. Stipp (“Mitchell Stipp”)
(collectively the “Stipps”), who is also acting
as Plaintiff's attorney in this matter, originally filed
suit in state court against various defendants, including
Defendants here. (Ex. A to Mot. to Dismiss
(“MTD”), ECF No. 5-1). As with Plaintiff's
Complaint in this case, the state court complaint alleged
Defendants breached an agreement with the Stipps to provide
therapy to their son, Mitchell Stipp, Jr. (“Mitchell,
Jr.”). (Id.). The state court determined that
the Stipps' complaint sounded in medical malpractice and
granted Defendants' motion to dismiss based on the
Stipps' failure to attach an expert affidavit pursuant to
NRS § 41A.071 and failure to file within the statute of
limitations. (See MTD 2:20-24, ECF No. 5); (Resp.
3:3-9, ECF No. 6); (Ex. B to MTD, ECF No. 5-2). The Stipps
filed an appeal of that decision, which is currently pending.
See Stipp v. Beasley, No. 69815 (Nev. Feb. 24,
thereafter, the Stipps filed a similar complaint against
Defendants in this Court, invoking the Court's diversity
jurisdiction pursuant to 18 U.S.C. § 1332. See Stipp
v. Beasley, No. 2:16-cv-00357-APG-PAL (D. Nev. Feb. 25,
2016). The Honorable Judge Andrew P. Gordon dismissed the
case sua sponte “[b]ecause Mitchell Stipp is a citizen
of Nevada and both defendants are citizens of Nevada,
complete diversity is lacking and the court cannot exercise
diversity jurisdiction.” Order, Stipp v.
Beasley, No. 2:16-cv-00357-APG-PAL (D. Nev. Feb. 25,
2016). Plaintiff then filed the instant
“identical” Complaint, “[r]emoving
[Mitchell Stipp] as a plaintiff.” (Resp. 3:14). In the
instant Motion, Defendants argue that the Complaint fails to
remedy the defect in diversity jurisdiction as both Plaintiff
and Defendants are domiciled in Nevada.
12(b)(1) of the Federal Rules of Civil Procedure permits
motions to dismiss for lack of subject matter jurisdiction.
Fed.R.Civ.P. 12(b)(1). When subject matter jurisdiction is
challenged, the burden of proof is placed on the party
asserting that jurisdiction exists. Scott v.
Breeland, 792 F.2d 925, 927 (9th Cir. 1986) (holding
that “[t]he party seeking to invoke the court's
jurisdiction bears the burden of establishing that
jurisdiction exists”). Accordingly, courts presume lack
of subject matter jurisdiction until the plaintiff proves
otherwise in response to the motion to dismiss. Kokkonen
v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
motion to dismiss under Rule 12(b)(1) may be construed in one
of two ways. Thornhill Publ'g Co., Inc. v. Gen. Tel.
& Elec. Corp., 594 F.2d 730, 733 (9th Cir. 1979). It
may be described as ‘facial, ' meaning that it
attacks the sufficiency of the allegations to support subject
matter jurisdiction. Id. Alternatively, it may be
described as ‘factual, ' meaning that it
“attack[s] the existence of subject matter jurisdiction
in fact.” Id. When, as here, a defendant
asserts a factual attack, “[t]he plaintiff bears the
burden of proving by a preponderance of the evidence that
each of the requirements for subject-matter jurisdiction has
been met.” Leite v. Crane Co., 749 F.3d 1117,
1121 (9th Cir. 2014).
a case dismissed for lack of subject matter jurisdiction
should be dismissed without prejudice so that a plaintiff may
reassert his claims in a competent court.” Frigard
v. United States, 862 F.2d 201, 204 (9th Cir. 1988) (per
curiam). However, where there is no way to cure the
jurisdictional defect, dismissal with prejudice is proper.
cases not involving federal claims, federal district courts
are vested with original jurisdiction over civil actions
where the amount in controversy exceeds $75, 000 and the
parties are citizens of different states. 28 U.S.C. §
1332(a)(1). A person's state citizenship is determined by
their state of domicile, not their state of residence.
Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th
Cir. 2001). A person is domiciled in a location “where
he or she has established a fixed habitation or abode in a
particular place, and [intends] to remain there permanently
or indefinitely.” Lew v. Moss, 797 F.2d 747,
749-50 (9th Cir. 1986). A person's old domicile is not
lost until a new one is acquired. Id. at 750.
asserts that, although she was previously domiciled in
Nevada, she recently became domiciled in California. (Resp.
6:26-7:2, ECF No. 6). Plaintiff must therefore overcome the
“presumption in favor of an established domicile as
against a newly acquired one.” Lew, 797 F.2d
at 750-51; see also McNatt v. Allied-Signal, Inc.,
972 F.2d 1340 (9th Cir. 1992) (unpublished) (“[M]oving
for a limited purpose such as to pursue employment is often
not alone sufficient to destroy an affiliation with the prior
domicile.”). “A change in domicile requires the
confluence of (a) physical presence at the new location with
(b) an intention to remain there indefinitely.”
Lew, 797 F.2d at 751. “The intention to remain
may be established by factors such as: current residence;
voting registration and practices; location of personal and
real property; location of brokerage and bank accounts;
location of spouse and family; membership in unions and other
organizations; place of employment or business; driver's
license and automobile registration; and payment of
taxes.” Kyung Park v. Holder, 572 F.3d 619,
624-25 (9th Cir. 2009) (citing Lew, 797 F.2d at
750). No single factor is determinative. Lew, 797
F.2d at 750. These objective factors are evaluated in terms
of “objective facts, ” and “statements of
intent are entitled to little weight when in conflict with
declaration avers that “[w]hen [she] moved to
California, [she] fully intended to remain there (and still
do[es]). Mitchell, Jr. receives treatment and care in
California six (6) to eight (8) hours each day, Monday though
[sic] Friday (and occasionally on Saturdays and
Sundays).” (Pl.'s Decl. ¶ 8, ECF No. 7). The
declaration further states that Plaintiff's
“personal property and effects and the same for
Mitchell, Jr. (including clothes) are located in [her]
apartment in California.” (Id. ¶ 6). The
only evidence Plaintiff submits to support her intent to
remain in California is a lease agreement and two utility
bills. (Exs. 1-2 to Pl.'s Decl., ECF No.
While the lease agreement does implicate one Lew
factor, residency alone is not sufficient to show an intent
to remain; only domicile is determinative. Kanter,
265 F.3d at 857; Williams v. Sugar Hill Music Publ'g,
Ltd., No. C 05-03155 CRB, 2006 WL 1883350, at *8 (N.D.
Cal. July 7, 2006) (finding apartment lease and regular
presence in jurisdiction insufficient to prove domicile
facts undercut Plaintiff's declaration. First,
Plaintiff's vehicle is registered in Nevada, not
California. (See Ex. 1 to Pl.'s Decl.); see
Lew, 797 F.2d at 749 (including automobile registration
as one of the factors to consider when establishing
domicile). Second, Plaintiff's spouse continues to
maintain his residency and law practice in Nevada.
See Compl., Stipp v. Beasley, No.
2:16-cv-00357-APG-PAL (D. Nev. Feb. 25, 2016); Lew,
797 F.2d at 752 (finding proponent of federal jurisdiction
failed to present substantial evidence to establish new
domicile where, inter alia, his wife continued to
live and work in his original domicile). Weighed against
these objective facts, Plaintiff's mere residency in
California fails to overcome the presumption in favor of her
established domicile in Nevada. See, e.g.,
Kanter, 265 F.3d at 857 (“A person residing in
a given state is not necessarily domiciled there, and thus is
not necessarily a citizen of that state.”). ...