1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JACK STONE, Case No. 21-cv-02090-DMR

8 Plaintiff, ORDER TO SHOW CAUSE 9 v.

10 POPOUT INC., et al., 11 Defendants.

12 Pro se Plaintiff Jack Stone filed a complaint and an application for leave to proceed in 13 forma pauperis (“IFP”) on March 23, 2021. [Docket Nos. 1, 3.] On March 26, 2021, the court 14 granted Plaintiff’s IFP application and noted that it would determine separately whether the 15 complaint should be served. [Docket No. 8.] 16 Having reviewed the complaint, it appears that the court lacks subject matter jurisdiction 17 over this action. Plaintiff alleges that he contracted with Defendant Popout, Inc. dba Shippo 18 (“Shippo”) “to ship a surfboard and relevant accessories to Plaintiff’s residence in Sendai, Japan,” 19 and that Shippo was acting as an agent for Defendant DHL Freight USA, Inc. (“DHL”). Compl. ¶ 1. He further alleges that in December 2020, a third party delivered the surfboard and accessories 20 to him in “badly damaged” condition, with the surfboard “destroyed . . . beyond repair.” Id. at ¶¶ 21 9, 11. Defendants have failed to process Plaintiff’s damages claims and refused to reimburse 22 Plaintiff for his damages. See generally Compl. He alleges that he paid a total of $889.94 for the 23 surfboard and accessories and $261.32 in shipping costs, and that Shippo also charged an 24 “unauthorized fee” of $129.00 related to postage. Compl. ¶¶ 4, 6, 15. He appears to bring claims 25 for breach of contract, negligence, and fraudulent misrepresentation. Compl. 2 § C. 26 Federal courts are courts of limited jurisdiction, and a “federal court is presumed to lack 27 1 Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989) (citations omitted). A federal court 2 may exercise either federal question jurisdiction or diversity jurisdiction. Here, Plaintiff appears 3 to assert state law claims; therefore, Plaintiff may only proceed in federal court if he establishes 4 diversity jurisdiction. 5 Plaintiff avers that this case fulfills the diversity jurisdiction requirements. See Compl. 2. 6 A district court has diversity jurisdiction where the parties are diverse and “the matter in 7 controversy exceeds the sum or value of $75,000, exclusive of interests and costs.” 28 U.S.C. § 8 1332. In relevant part, 28 U.S.C. § 1332 provides that parties are diverse when they are “citizens of different States” or “citizens of a State and citizens or subjects of a foreign state.” 28 U.S.C. § 9 1332(a)(1), (2). Parties are diverse only when “the citizenship of each plaintiff is diverse from the 10 citizenship of each defendant.” Caterpillar Inc. v. Lewis, 519 U.S. 61, 62 (1996). “[T]he 11 congressional grant of diversity jurisdiction is to be strictly construed.” Kantor v. Wellesley 12 Galleries, Ltd., 704 F.2d 1088, 1092 (9th Cir. 1983). 13 Plaintiff claims that he is a resident of Japan, that Shippo is headquartered in San 14 Francisco, and that DHL does business in San Francisco, California. Compl. 2. Based on these 15 allegations, it is not clear whether the parties are diverse, as Plaintiff does not allege his own 16 citizenship or the citizenship of either defendant. To the extent Plaintiff claims jurisdiction is 17 proper under 28 U.S.C. § 1332(a)(1), he must allege that the parties are “citizens of different 18 States.” As to Defendants, “a corporation is deemed a citizen of any state where it is 19 incorporated and the state where it has its principal place of business.” Co-Efficient Energy Sys. v. 20 CSL Indus., Inc., 812 F.2d 556, 557 (9th Cir. 1987) (citing 28 U.S.C. § 1332(c)). Thus, it appears 21 that Shippo may be a citizen of California, since it is headquartered in this state. However, the 22 complaint does not allege facts regarding DHL’s citizenship. “Absent unusual circumstances, a 23 party seeking to invoke diversity jurisdiction should be able to allege affirmatively the actual 24 citizenship of the relevant parties.” Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 25 2001). 26 As to Plaintiff, citizenship is determined based on his United States citizenship and his 27 domicile. Kantor, 704 F.2d at 1090. “In order to be a citizen of a State within the meaning of the 1 diversity statute, a natural person must both be a citizen of the United States and be domiciled 2 within the State.” Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 828 (1989) (emphasis in 3 original). “A person’s domicile is her permanent home, where she resides with the intention to 4 remain or to which she intends to return.” Kanter, 265 F.3d at 857. Here, the complaint alleges 5 only that Plaintiff resides in Japan; it does not allege that Plaintiff is a citizen of the United States 6 or that he is domiciled within a state. Therefore, it does not sufficiently allege that he is a citizen 7 of a state for purposes of 28 U.S.C. § 1332(a)(1). See Louisiana Mun. Police Employees’ Ret. Sys. 8 v. Wynn, 829 F.3d 1048, 1056 (9th Cir. 2016) (holding United States citizen who was a permanent 9 resident of Macau “cannot be a citizen of a State for purposes of diversity jurisdiction” because 10 she was not domiciled in a state). 11 To the extent that Plaintiff relies on 28 U.S.C. § 1332(a)(2), that subsection requires an 12 action to be between “citizens of a State and citizens or subjects of a foreign state.” However, the 13 complaint does not allege facts to support diversity jurisdiction under that subsection, as it does 14 not allege that any party is a “citizen[ ] or subject of a foreign state.” Moreover, Section 15 1332(a)(2) does not apply if Plaintiff is a United States citizen, since at least one defendant 16 (Shippo) appears to be an American citizen. Louisiana Mun. Police Employees’ Ret. Sys., 829 17 F.3d at 1056 (holding that “jurisdiction cannot be grounded in § 1332(a)(2)” where “there are 18 American citizens on both sides of the case”). 19 Additionally, Plaintiff alleges that the amount in controversy in this case is $75,000.01. 20 Compl. 2. However, Plaintiff’s DHL damages claim, which is attached to the complaint, seeks only the sum of $724.94. Id. at ¶ 32, Ex. G. To the extent that Plaintiff seeks reimbursement for 21 the purchase price of the surfboard and accessories in addition to all of the shipping charges he 22 incurred, the total potential damages appears to be $1,280.26, far below the $75,000 minimum 23 required to establish diversity jurisdiction. The complaint contains no allegations supporting 24 Plaintiff’s claim that the amount in controversy is actually $75,000.01. 25 Therefore, by no later than May 26, 2021, Plaintiff shall show cause in writing why this 26 matter should not be dismissed for lack of subject matter jurisdiction. If Plaintiff does not file a 27 1 dismissed. 2 The court refers Plaintiff to the section “Representing Yourself” on the court’s website, 3 located at http://cand.uscourts.gov/proselitigants, as well as the Court’s Legal Help Center for 4 || unrepresented parties. The Legal Help Center may be reached by phone at (415)782-8982. 5 KES DISTR Ic} 6 IT IS SO ORDERED. ON

7 || Dated: May 12, 2021 & DERED o 2/[\x0 1s so OF poy a MB yu ° A\V\ chip A MZ O A sage por □□ 10 We □□ re Sy i Oy iy OS 12 DISTRICL-

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