Opinion
No. CIV06-0745-PHX-RCB.
March 3, 2008
ORDER
Currently pending before the court is, inter alia, a motion for summary judgment by defendant Howmedica Osteonics Corporation. The parties are not challenging this court's jurisdiction, which purports to be based upon diversity of citizenship pursuant to 28 U.S.C. § 1332. See Not. of Removal (doc. 1). Nonetheless, because federal courts have limited jurisdiction, before addressing the merits of Howmedica's motion, this court has "an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of challenge from any party." Arbaugh v. Y H Corp., 546 U.S. 500, ___, 126 S.Ct. 1235, 1244 (2006) (citation omitted). This obligation is particularly compelling where, as here, subject matter jurisdiction is not evident on the face of the removal petition or, for that matter, on the face of the complaint.
In the present case there are no allegations of plaintiffs' citizenship, only their residence. See Not. of Removal (doc. 1) at 3, par. 4 (citing Co., at ¶ 1) (emphasis added) ("Defendants are informed and believe, and therefore, allege, that at the time of the filing of the Complaint, Plaintiffs . . . are residents of Maricopa County, Arizona.") Based upon well-settled case law, this court has repeatedly stressed that allegations as to residency are insufficient to establish citizenship for diversity purposes, however. See, e.g., Home Buyers Warranty Corp. v. Leighty, 2007 WL 4616687, at *2 — *3 (D.Ariz. 2007); Lacombe, 2007 WL 2702005, at *1-*3; and Western World Insurance Co. v. Ramirez, 2007 WL 1839594, at *1 (D.Ariz. 2007). Presumptively, federal courts are without jurisdiction over civil actions, and the burden to establish to the contrary rests upon the party asserting jurisdiction. Kokken v. Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S.Ct. 1673, 1677 (1989). Furthermore, lack of subject matter jurisdiction is never waived and may be raised by the court sua sponte at any juncture. Attorneys Trust v. Videotape Computer Products, Inc., 93 F.3d 593, 594-595 (9th Cir. 1996). Therefore, the court hereby orders defendant Howmedica, as the party asserting jurisdiction, to file and serve, on or before, March 13, 2008, a memorandum and whatever else it deems necessary to establish this court's subject matter jurisdiction. This is essential because "[j]urisdiction is what [this court's] power rests upon." In re Mooney, 841 F.2d 1003, 1006 (9th Cir. 1988). "Without jurisdiction it is nothing[;]" and hence it would be without power to decide the pending motions. See id.
"This omission [in plaintiffs' complaint] [is] understandable [given that] this action [was] removed from state court." Lacombe v. Bullhead City Hospital Corp., 2007 WL 2702005, at *2 (D.Ariz. 2007). "Indeed, it is not uncommon for a state court pleading to omit the necessary facts needed to determine diversity." Harris v. Bankers Life and Casualty Company, 425 F.3d 689, 693 (9th Cir. 2005). "That is so because `[o]bviously, diversity of citizenship is a federal, not a state, concern.'" Lacombe, 2007 WL 2702005, at *2 (quoting Harris, 425 F.3d at 693).
The court further orders plaintiffs to file and serve a sur-reply on or before March 13, 2008, addressing the issue of the applicability, if any, of the Restatement (Third) of Torts: Products Liability, Section 6(c) to the particular facts and circumstances of the present action. This issue must be addressed because it is the basis for the penultimate argument in Howmedica's Reply, and at least at first glance appears to be potentially dispositive.
The court is keenly aware, however, that Arizona courts "do not follow the Restatement blindly, . . . and will come to a contrary conclusion if Arizona law suggests otherwise." See Powers v. Taser Int'l, Inc., 174 P.3d 777, 782 (Ariz.App. Div. 1, 2008) (citations omitted). For that reason, the Arizona Court of Appeals, Division One, just recently undertook an independent evaluation of "whether the Restatement [(Third)] position is good legal authority under Arizona law" on the issue of "whether the hindsight test should be applied to a strict liability product claim alleging failure to warn as the defect." Id. at 782 and 778. Because "Arizona has not formally adopted the Restatement (Third) of Torts," Gebhardt v. Mentor Corporation, 191 F.R.D. 180, 185 (D.Ariz. 1999), aff'd on other grounds without pub'd opinion, 15 Fed. Appx. 540 (9th Cir. 2001), this court must undergo a similar independent evaluation of the potential applicability to the present action of Section 6(c) of that revision of the Restatement.
Consequently, as outlined above IT IS ORDERED that:
(1) Defendant Howmedica Osteonics Corporation shall file and serve no later than 5:00 p.m., March 13, 2008, a memorandum of law and whatever else it deems necessary to establish this court's subject matter jurisdiction; and
(2) IT IS FURTHER ORDERED that Plaintiffs shall file and serve no later than 5:00 p.m., March 13, 2008, a sur-reply addressing the applicability, if any, of the Restatement (Third) of Torts, Section 6(c), to the present case.