NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 9 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RAF STRUDLEY, individually and as No. 17-17233 trustee of the Charles Strudley Estate; RUTH STRUDLEY; MATTHEW D.C. No. 5:15-cv-05106-EJD

HANSEN; ALAN COMEAUX; STEVEN

GOODMAN; ELAINE M. CARRIGAN,

individually and as trustee of the Casanova MEMORANDUM* Family Trust; GREGORY WYNNE;

DARRELL TORCHIO; SHARON

TORCHIO; JON IFLAND; MONICA

IFLAND; PETER JACOBSON; TERRY

LORANT; MICHAEL SINGER; SALLY

EASTMAN; KAREN COGSWELL;

LINDA ERICKSON; LOREE VIAL;

KAREN DANIEL; ROBERT DANIEL, Jr.; CHAD G. CLEMENS, Sr.; BRIAN

CONWAY; DAVID DAVISON;

ROSEMARY DAVISON; VIN SION;

KRISTY SION; JOE KATZMAN; JAN

LEININGER; MICHAEL ATHAN; ALAIN

DUMESNY; MARK MURRAY; SUE ANN

MURRAY; ROBERT ALAN

NOTTINGHAM; KRISTINE TAYLOR;

ROBERT A. FRANK; TERI FRANK,

individually and as trustee of the Frank Charitable Remainder Trust; JEFFREY FRANK; INGRID HILLS, individually and as trustee of the Edward E. Hills Fund;

ARTHUR CAISSE; MARK KING;

JERRYNE KING; ARNOLD ROBINSON;

BEVERLY ROBINSON; PAUL D.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. BROWNE, individually and as co-trustee of the Browne Family Trust; JOYCE

BROWNE; MARK P. WITZIG; DAVID A.

BYRON; SCOTT HUGHES; ALAN

PEEVERS; LISA PEEVERS; ROBERT

LAYTON; DEBBIE ATWOOD LAYTON;

HOLLY PAETAU; JULIE PANUSHKA;

INGRID NUDELMAN,

Plaintiffs-Appellants,

v.

SANTA CRUZ COUNTY BANK; JOHN

GERINGER; CHRISTOPHER A. LUCK;

KEITH EVERTS RODE,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Edward J. Davila, District Judge, Presiding

Submitted December 19, 2018** San Francisco, California

Before: CALLAHAN, N.R. SMITH, and MURGUIA, Circuit Judges.

This appeal presents the issue of whether Plaintiffs may amend their

complaint as a matter of right pursuant to Federal Rule of Civil Procedure 15(a) to

cure a jurisdictional defect in their original complaint. The district court held that

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

2 they could not. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

In line with Supreme Court precedent, this Circuit has adhered to the time-

of-filing rule, which provides that “[s]ubject matter jurisdiction must exist as of the

time the action is commenced.” Morongo Band of Mission Indians v. Cal. State Bd.

of Equalization, 858 F.2d 1376, 1380 (9th Cir. 1988) (citing Mollan v. Torrance,

22 U.S. 537, 538 (1824)). A review of Plaintiffs’ original complaint demonstrates

that Plaintiffs failed to allege any basis for diversity jurisdiction or federal-question

jurisdiction. Plaintiffs did not allege diversity of citizenship in their original

complaint. See 28 U.S.C. § 1332. Nor did Plaintiffs allege a federal cause of action

in their original complaint or state-law claims that raised a substantial question of

federal law. See Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677,

689–90 (2006) (“A case aris[es] under federal law within the meaning of § 1331 . .

. if a well-pleaded complaint establishes either that federal law creates the cause of

action or that the plaintiff’s right to relief necessarily depends on resolution of a

substantial question of federal law.”) (alterations in original) (internal quotation

marks omitted).

Plaintiffs argue that 28 U.S.C. § 1653 allowed them to amend their

complaint to cure any jurisdictional defect. However, § 1653 only allows for

amendments of “incorrect [allegations] about jurisdiction that actually exists, and

not defects in the jurisdictional facts themselves.” Newman-Green, Inc. v. Alfonzo-

3 Larrain, 490 U.S. 826, 831 (1989). Here, Plaintiffs sought to create jurisdiction,

not clarify it, when they amended their complaint to add a federal cause of action.

Plaintiffs’ reliance on Rockwell International Corp. v. United States, 549

U.S. 457 (2007) is inapposite because Rockwell stands for the proposition that a

plaintiff may voluntarily amend its original complaint to remove federal

jurisdiction (except when a case has been removed to federal court). See id. at

473–75 & n.6. Plaintiffs amended their complaint for the exact opposite purpose in

this case. Therefore, the district court correctly looked to the original complaint in

concluding that it lacked subject matter jurisdiction over this case.

AFFIRMED.

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