Moffitt et al v. Desert Mesa Construction, No. 4:2019cv00019 - Document 16 (D. Utah 2019)

Court Description: MEMORANDUM DECISION AND ORDER finding [8} Order to Show Cause re: Subject-Matter Jurisdiction is satisfied; denying as moot 14 Motion to Dismiss for Lack of Jurisdiction; setting Answer Deadline of 4/25/19 for 15 Second Amended Complaint. Signed by Judge David Nuffer on 4/11/19 (alt)

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Moffitt et al v. Desert Mesa Construction Doc. 16 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH THEODORE MOFFITT and PATRICIA MOFFITT, MEMORANDUM DECISION AND ORDER REGARDING SUBJECTMATTER JURISDICTION Plaintiffs, Case No. 4:19-cv-00019-DN v. District Judge David Nuffer DESERT MESA CONSTRUCTION, LLC, Defendant. On February 13, 2019, the Moffitts filed a Complaint 1 commencing this action based on diversity of citizenship under 28 U.S.C. § 1332(a)(1). Although the Complaint alleged that “[t]he Moffitts are residents of the state of Arizona,” it made no allegation regarding their citizenship, based on their domicile (rather than mere residence). 2 As a result, on February 22, 2019, an Order to Show Cause re: Subject-Matter Jurisdiction (“OSC”) 3 was entered requiring the Moffitts to “file an amended complaint containing allegations essential to show their respective citizenship” “by no later than Friday, March 1, 2019.” 4 While the Moffitts timely filed an Amended Complaint, 5 they failed to assert any new allegation to show their citizenship. Instead, they once again merely asserted that they “are residents of the state of Arizona.” 6 1 Complaint, docket no. 2, filed February 13, 2019. 2 Id. ¶ 1. 3 Docket no. 8, filed February 22, 2019. 4 Id. at 2. 5 Docket no. 9, filed February 26, 2019. 6 Id. ¶ 1. elm Dockets.Justia.com On March 21, 2019, Defendant Desert Mesa Construction LLC (“DMC”) filed a Motion to Dismiss for Lack of Subject-Matter Jurisdiction (“SMJ Motion”) 7 under Fed. R. Civ. P. 12(b)(1) “because the Amended Complaint fails to allege diversity of citizenship between citizens of different states.” 8 While the Moffitts have not yet filed a response to the SMJ Motion, they filed a Second Amended Complaint 9 on April 10, 2019, as is allowed under Fed. R. Civ. P. 15(a)(1)(B). The Second Amended Complaint contains allegations sufficient to show the Moffitts’ citizenship for diversity purposes. 10 THEREFORE, IT IS HEREBY ORDERED as follows: 1. The OSC 11 is SATISFIED based on the allegations of the Second Amended Complaint. 2. The SMJ Motion7 is MOOT, and accordingly DENIED, based on the allegations of the Second Amended Complaint, which are sufficient to establish subject-matter jurisdiction in this diversity action. 3. In accordance with Fed. R. Civ. P. 12(a)(4)(A), DMC must serve a responsive pleading to the Second Amended Complaint by no later than April 25, 2019. Signed April 11, 2019. BY THE COURT: David Nuffer United States District Judge 7 Docket no. 14, filed March 21, 2019. 8 Id. at 1. 9 Docket no. 15, filed April 10, 2019. 10 See id. ¶¶ 3-4. 11 Docket no. 8, filed February 22, 2019. 2

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