James Harris v. Lee Rand

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JAMES B. HARRIS; JAMES B. HARRIS 
PRODUCTIONS, INC.; IAN REYNOLDS;
CAMJET INC.; MARK LIPSKY; WHO’S
ON FIRST? PRODUCTIONS, INC.;
THOMAS H. SOMERS; GARY M.
ERICKSON; RICHARD E. ROSS; GARY
KILLIEBREW; JUANITA KILLIEBREW;
KILLIEBREW FARMS, INC.; ROBERT
O’BYRNES; WILLAMETTE FINANCIAL
GROUP, INC.; GRAHAM CATT;
GLYNIS CATT; ROBERT STASKIEWICZ; No. 10-57012
SANDY STASKIEWICZ; ROBERT D.C. No.
RUSSELL,
Plaintiffs-Appellants,
 2:10-cv-03804-
PSG-SS
v. OPINION
LEE W. RAND,
Defendant-Appellee,
and
JAMES EDGAR BURKE, II; IMUSOL
TRADING, S.A.; CENTRAL EUROPEAN
INTERNATIONAL BANK, LTD.; JOHN
W. DORAMUS; LUCY F. BURKE;
JAMES EDGAR BURKE, III,
Defendants.

Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding

Argued and Submitted
May 8, 2012—Pasadena, California

6723
6724 HARRIS v. RAND
Filed June 13, 2012

Before: Dorothy W. Nelson, Raymond C. Fisher, and
Morgan B. Christen, Circuit Judges.

Opinion by Judge Christen
6726 HARRIS v. RAND
COUNSEL

Abraham R. Wagner, Los Angeles, California, for the appel-
lants.

Andrew J. Waxler & Danielle R. Sokol (argued), Waxler Car-
ner Brodsky LLP, El Segundo, California, for the appellee.

OPINION

CHRISTEN, Circuit Judge:

James B. Harris et al. (collectively, “plaintiffs”) appeal
from the district court’s dismissal without prejudice of their
first amended complaint for lack of subject matter jurisdic-
tion. The district court, citing Hertz Corp. v. Friend, ___ U.S.
___, 130 S. Ct. 1181 (2010), dismissed the first amended
complaint because plaintiffs failed to provide factual support
for their allegations of diversity. But Hertz did not impose a
heightened pleading standard and, in two orders issued before
its order of dismissal, the district court requested that plain-
tiffs provide further allegations of the corporate parties’ prin-
cipal places of business, not further proof. The district court
did not abuse its discretion by requesting proof of the parties’
principal places of business, but we find its orders inconsis-
tent. We therefore vacate the order dismissing the first
amended complaint, and remand.

BACKGROUND

On May 20, 2010, plaintiffs filed suit in the United States
District Court pursuant to 28 U.S.C. § 1332(a)(2), which pro-
vides for subject matter jurisdiction over actions between citi-
zens of a state and citizens or subjects of a foreign state.1
1
Plaintiffs later amended the complaint to properly assert jurisdiction
under § 1332(a)(3) because at least one of the defendants, Lee W. Rand,
was a United States citizen. See 28 U.S.C. § 1332(a)(3) (providing for
original jurisdiction over actions between “citizens of different States and
in which citizens or subjects of a foreign state are additional parties”).
 HARRIS v. RAND 6727
On June 28, 2010, the district court issued an Order to
Show Cause (“OSC”) why the complaint should not be dis-
missed for lack of subject matter jurisdiction. The district
court’s order stated that the complaint’s jurisdictional aver-
ment was “patently insufficient.” It also stated that plaintiffs
failed to offer adequate facts to support their assertion of the
corporate parties’ principal places of business. The district
court cited Hertz, where the Supreme Court held that a corpo-
ration’s principal place of business is “the place where the
corporation’s high level officers direct, control, and coordi-
nate the corporation’s activities,” i.e., its “nerve center.” 130
S. Ct. at 1186.

On July 9, 2010, plaintiffs responded to the OSC. Their
response stated that the defendant corporations’ principal
places of business, or “nerve centers,” were in Louisiana and
Hungary. Their response also provided information regarding
the directors, headquarters, and offices of those corporations.
Plaintiffs’ response alleged complete diversity existed
because “[w]hile Plaintiffs come from several states and Aus-
tralia, none are residents or citizens of Louisiana.” Plaintiffs’
response alternatively requested leave to amend the complaint
should the district court not find complete diversity.

Because plaintiffs’ response did not provide any additional
facts regarding the principal places of business of the plaintiff
corporations, despite providing “substantial information about
the defendant corporations,” the district court deemed the
response inadequate. But the court also granted leave to
amend and plaintiffs subsequently filed their first amended
complaint (“FAC”) which included allegations of the princi-
pal places of business for each of the corporate parties.

On September 9, 2010, the district court dismissed the FAC
without prejudice for lack of subject matter jurisdiction. Cit-
ing Hertz, the district court’s order explained that plaintiffs
“provide[d] no allegation of fact upon which [the district
court could] determine where the ‘corporation’s high level
6728 HARRIS v. RAND
officers direct, control, and coordinate the corporation’s activ-
ities.’ ” The district court concluded that plaintiffs failed to
satisfy their burden to show citizenship by a preponderance of
evidence. Without allegations as to the plaintiff corporations’
“nerve centers,” the court ruled that it had no basis for con-
cluding that complete diversity existed.

Plaintiffs filed a motion for rehearing pursuant to Federal
Rules of Civil Procedure 59(e) and 60 arguing that the district
court committed clear error and that its dismissal order was
“manifestly unjust.” Alternatively, plaintiffs requested leave
to amend their complaint again or certification for an interloc-
utory appeal of the dismissal. The district court denied the
motion for rehearing, explaining that the complaint had been
dismissed “based on Plaintiffs[’] failure to provide factual
support for its allegations in response to the Court’s specific
request, not on the presence or absence of certain pleading
language.” This appeal followed.

DISCUSSION

We address two issues in this case. We first decide
whether, in light of Hertz, a complaint must now plead that
a corporate party’s “nerve center” is located in a particular
place. Second, we decide on the facts of this case whether the
district court properly dismissed the FAC. We answer both in
the negative. Because we conclude that the district court erred
by dismissing plaintiffs’ FAC, we do not address plaintiffs’
claims that the district court abused its discretion by denying
the motion for rehearing and the request for leave to amend
the FAC.

I. Hertz did not impose a heightened pleading standard.

a. General pleading requirements

[1] Under Federal Rule of Civil Procedure 8(a)(1), a plead-
ing must contain “a short and plain statement of the grounds
 HARRIS v. RAND 6729
for the court’s jurisdiction, unless the court already has juris-
diction and the claim needs no new jurisdictional support.”
The federal diversity jurisdiction statute provides that “a cor-
poration shall be deemed to be a citizen of every State and
foreign state by which it has been incorporated and of the
State or foreign state where it has its principal place of busi-
ness.” 28 U.S.C. § 1332(c)(1). Given their limited jurisdic-
tion, federal courts have repeatedly held that a complaint must
include allegations of both the state of incorporation and the
principal place of business of corporate parties. E.g., Fifty
Assocs. v. Prudential Ins. Co. of Am., 446 F.2d 1187, 1190
(9th Cir. 1970) (faulting plaintiffs’ failure to affirmatively
allege state of incorporation); Am. Motorists Ins. Co. v. Am.
Emp’rs’ Ins. Co., 600 F.2d 15, 16 & n.1 (5th Cir. 1979) (per
curiam) (failure to specifically allege state of incorporation
and principal place of business); see also 5 Charles Alan
Wright et al., Federal Practice and Procedure § 1208 n.12
(3d ed. 2004) (listing cases requiring pleading of both state or
states of incorporation and location of principal place of busi-
ness).

[2] Consistent with Rule 8 and § 1332(c)(1), Form 7(a) in
the Appendix of Forms to the Federal Rules of Civil Proce-
dure sets out a proposed format for alleging diversity:

The plaintiff is [a citizen of Michigan] [a corporation
incorporated under the laws of Michigan with its
principal place of business in Michigan]. The defen-
dant is [a citizen of New York] [a corporation incor-
porated under the laws of New York with its
principal place of business in New York]. The
amount in controversy, without interest and costs,
exceeds the sum or value specified by 28 U.S.C.
§ 1332.

Fed. R. Civ. P. Form 7(a) (2007) (brackets in original). The
allegations set forth in Form 7(a) are consistent with Rule 8’s
requirement of a “short and plain statement.” See Fed. R. Civ.
6730 HARRIS v. RAND
P. 84 (“The forms in the Appendix suffice under these rules
and illustrate the simplicity and brevity that these rules con-
template.”).

In Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57
(2007), the Supreme Court reiterated that a complaint must
include more than just conclusory allegations to survive a
Rule 12(b)(6) motion to dismiss. See also Ashcroft v. Iqbal,
556 U.S. 662, 679 (2009) (“While legal conclusions can pro-
vide the framework of a complaint, they must be supported by
factual allegations.”). Trial courts must accept a complaint’s
factual allegations as true, but those allegations must plausi-
bly suggest “the pleader is entitled to relief.” Twombly, 550
U.S. at 557. And “the tenet that a court must accept as true
all of the allegations contained in a complaint is inapplicable
to legal conclusions.” Iqbal, 556 U.S. at 678. Form 7(a)
requires more than just a recitation of the legal conclusion that
the parties are diverse. It requires the assertion of facts regard-
ing the location of a party’s principal place of business. Those
factual allegations are entitled to a presumption of truth under
Twombly and Iqbal. See id. at 680-81; Twombly, 550 U.S. at
554-55.

b. Impact of Hertz

Prior to Hertz, federal courts of appeal applied different
tests to interpret “principal place of business”: (1) the locus of
operations (focusing on the location of the bulk of the corpo-
ration’s actual physical operations); (2) the nerve center (the
location where the activities of the corporation are controlled
and directed); and (3) the center of corporate activities (the
center of a corporation’s production or service activities). See
15 James Wm. Moore et al., Moore’s Federal Practice
§ 102.54[3][a] (3d ed. 2009); see also Hertz, 130 S. Ct. at
1191-92.

[3] In Hertz, the Supreme Court resolved these differing
circuit court interpretations and settled on the “nerve center”
 HARRIS v. RAND 6731
test. Hertz, 130 S. Ct. at 1192. The Court held that for diver-
sity jurisdiction purposes a corporation’s principal place of
business “refer[s] to the place where a corporation’s officers
direct, control, and coordinate the corporation’s activities.” Id.
The Court explained that a principal place of business “should
normally be the place where the corporation maintains its
headquarters — provided that the headquarters is the actual
center of direction, control, and coordination, i.e., the ‘nerve
center.’ ” Id.

[4] Hertz provided a uniform test for courts to apply when
determining the principal place of business for federal diver-
sity jurisdiction purposes. It did not impose a heightened
pleading requirement or dictate a precise manner for pleading
subject matter jurisdiction. We conclude that a complaint, like
the one in this case, that follows the general framework set
forth in Form 7(a) is sufficient to satisfy Rule 8(a)(1); Hertz
does not mandate more.

c. A district court may require additional proof.

[5] There was no motion to dismiss filed in this case, but
where the circumstances show that the allegations of a party’s
principal place of business are implausible, the district court
may require more specific pleading. See Iqbal, 556 U.S. at
679 (“Determining whether a complaint states a plausible
claim for relief will . . . be a context-specific task that requires
the reviewing court to draw on its judicial experience and
common sense.”). Additionally, where the district court has
doubts about whether diversity exists, the district court may
“insist that the jurisdictional facts be established or the case
be dismissed, and for that purpose the court may demand that
the party alleging jurisdiction justify [its] allegations by a pre-
ponderance of evidence.” Gaus v. Miles, Inc., 980 F.2d 564,
567 (9th Cir. 1992) (emphasis omitted) (quoting McNutt v.
Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936)).
Here, the district court initially requested that plaintiffs pro-
vide further allegations of the corporate parties’ principal
6732 HARRIS v. RAND
places of business. The district court was not satisfied with
plaintiffs’ responses and it dismissed plaintiffs’ first amended
complaint without prejudice, which precluded the plaintiffs
from filing a further amended complaint. Plaintiffs argue that
the court erred by dismissing the FAC. We agree.

II. The district court erred by dismissing the FAC.

We review de novo whether the district court properly dis-
missed plaintiffs’ first amended complaint for lack of subject
matter jurisdiction. See Schnabel v. Lui, 302 F.3d 1023, 1029
(9th Cir. 2002). Although the district court may properly
require a party asserting federal subject matter jurisdiction to
establish its jurisdictional allegations by competent proof, see
Hertz, 130 S. Ct. at 1194-95, the orders in this case were con-
fusing and inconsistent. For this reason, we vacate the dis-
missal and remand.

[6] The OSC faulted plaintiffs for failing to provide suffi-
cient allegations of the corporate parties’ principal places of
business, noting that “[t]he complaint is deficient because . . .
the jurisdiction averment by plaintiff(s) is patently insuffi-
cient.” Plaintiffs’ FAC included allegations of the principal
places of business for each of the corporate parties consistent
with Form 7(a). The district court dismissed the FAC, not
because its jurisdictional averment remained deficient, but
because plaintiffs did not “support their allegations by compe-
tent proof” and “did not satisfy their burden to show citizen-
ship by a preponderance of the evidence.” The order denying
plaintiffs’ motion for rehearing explained that the complaint
was dismissed “based on Plaintiffs[‘] failure to provide fac-
tual support for its allegations in response to the Court’s spe-
cific request, not on the presence or absence of certain
pleading language.” We do not decide that the district court
abused its discretion by requesting proof of the corporate par-
ties’ nerve centers; the district court erred because its prior
order suggested it was plaintiffs’ “jurisdiction averment” that
 HARRIS v. RAND 6733
was lacking but it dismissed the complaint for lack of “proof
of citizenship.”

[7] The orders dismissing the FAC and denying the motion
for rehearing fault plaintiffs for failing to provide additional
proof that was never clearly requested. In light of these con-
flicting orders, we vacate the order dismissing plaintiffs’ FAC
and remand this case to the district court.

VACATED and REMANDED.