Unpublished Disposition, 933 F.2d 1013 (9th Cir. 1986)

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US Court of Appeals for the Ninth Circuit - 933 F.2d 1013 (9th Cir. 1986)

Tony GELL, Plaintiff-Appellant,v.SUMMA CORPORATION, a Delaware Corporation, dba Desert InnHotel and Country Club, Defendant-Appellee.

No. 90-15383.

United States Court of Appeals, Ninth Circuit.

Submitted May 13, 1991.* Decided May 22, 1991.

Before FARRIS, BOOCHEVER and FERNANDEZ, Circuit Judges.


MEMORANDUM** 

Tony Gell appeals the district court's judgment, dismissing, without prejudice, his complaint against Summa Corporation for defamation, and its order denying his motion to amend or supplement his complaint. Gell contends that the district court abused its discretion in dismissing his action and in failing to allow an amendment to his complaint.

We do not reach the merits of Gell's appeal because we conclude that the district court was without jurisdiction.

Gell filed his complaint in the district court on April 1, 1986, alleging diversity of citizenship under 28 U.S.C. § 1332 as the basis for federal jurisdiction. His complaint was facially contradictory on the issue of diversity of citizenship since it alleged that Gell was a citizen of the State of Nevada, and that Summa was incorporated in that state. Summa's answer to Gell's first amended complaint alleged that it was incorporated in the State of Delaware. A corporation is a citizen of both the state where it is incorporated and the state where it has its principal place of business. 28 U.S.C. § 1332(c) (1).

There was no allegation in the complaint or determination in the record as to Summa's principal place of business. Where diversity is potentially absent, we must consider whether we have jurisdiction over the action even if neither party challenges our jurisdiction. Sessions v. Chrysler Corp., 517 F.2d 759, 760 (9th Cir. 1975). Accordingly, we requested further briefing on the issue of diversity jurisdiction. It appears from the uncontradicted affidavit and other papers submitted by Summa that its principal place of business is in the State of Nevada. Thus, since it, too, was a citizen of Nevada, the parties are not diverse and the district court was without jurisdiction.

CONCLUSION

We REVERSE the district court's judgment dismissing the complaint against Summa Corporation for failure to state a claim. We REMAND to the district court with instructions to dismiss the action for lack of jurisdiction.

 *

The panel finds this case appropriate for submission without oral argument pursuant to 9th Cir.R. 34-4 and Fed. R. App. P. 34(a)

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3