ORDER:

(1) GRANTING DEFENDANT BRAND INC.'S CONSTELLATION MOTION TO DISMISS;

(2) DENYING AS MOOT PLAINTIFF'S MOTION TO DISMISS DEFENDANT ANA MARIA JIMENEZ GARCIA

[Docket Nos. 4, 8]

ROGER T. BENITEZ, District Judge.

Pending before the Court are Defendant Constellation Brand Inc.'s ("Constellation") Motion to Dismiss for Lack of Subject Matter Jurisdiction and Plaintiffs Motion to Dismiss Defendant Ana Maria Jimenez Garcia ("Garcia") from the case. (Docket Nos. 4, 8.) The Court finds the Motion suitable for determination on the papers without oral argument, pursuant to Civil Local Rule 7.1.d. 1. For the reasons set forth below, Defendant's Motion is GRANTED, and Plaintiffs Motion is DENIED as moot.

PROCEDURAL HISTORY

On November 22, 2016, Plaintiff filed his Complaint asserting diversity jurisdiction pursuant to 28 U.S.C. §§ 1332(a)(2) and 1332(a)(3). (Docket No. 1.) On December 20, 2016, Defendant Constellation filed the instant Motion to Dismiss for Lack of Subject Matter Jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. (Docket No. 4.) A hearing on Constellation's motion was noticed for January 23, 2017. Therefore, Plaintiffs Opposition was due on or before January 9, 2017. CivLR 7.1.e.2. Plaintiff did not file a timely Opposition. On January 13, 2017, Constellation filed its Reply, noticing Plaintiffs non-opposition. (Docket No. 6.)

On January 19, 2017, this Court took Constellation's motion on submission, and vacated the January 23, 2017 hearing. (Docket No. 7.) On January 25, 2017, Plaintiff concurrently filed the instant Motion to Dismiss Defendant Garcia and his belated Opposition.1 (Docket Nos. 8, 9.)

LEGAL STANDARD

"It is a fundamental principle that federal courts are courts of limited jurisdiction." Stock W, Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989) (quoting Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374, (1978). Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a defendant can move a court to dismiss an action for lack of subject matter jurisdiction. Fed. R. Civ. Proc. 12(b)(1). Even though the motion is brought by the defendant, it is the plaintiffs burden to establish jurisdiction in a motion to dismiss for lack of subject matter jurisdiction. See Kokkonenv. Guardian Life Ins. Co. ofAmerica, 511 U.S.375 (1994) ("It is to be presumed that a cause lies outside [federal court] jurisdiction . . . and the burden of establishing the contrary rests upon the party asserting jurisdiction.") (internal citations omitted).

A Rule 12(b)(1) jurisdictional attack may be facial or factual. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). A defendant presenting a facial attack asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. See Safe Air v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). A Rule 12(b)(1) motion will be granted if, on the face of the complaint, and when considered in its entirety, the complaint fails to allege facts sufficient to establish subject matter jurisdiction.

DISCUSSION

Defendant moves to dismiss Plaintiffs action for failure to demonstrate diversity jurisdiction under 28 U.S.C. §§ 1332(a)(2) and 1332(a)(3), which Plaintiff asserts provide the bases for this Court's jurisdiction. Defendant's motion presents a facial attack on the facts alleged in the Complaint.

A. 28 U.S.C. § 1332(a)(2)

28 U.S.C. § 1332(a)(2) provides, in pertinent part, that a federal court has jurisdiction over "citizens of a State and citizens or subjects of a foreign state." 28 U.S.C. § 1332(a)(2). Thus, where a complaint alleges that one or more plaintiffs are United States citizens and one or more defendants are United States citizens, diversity is destroyed. See Louisiana Mun. Police Employees' Ret. Sys. v. Wynn, 829 F.3d 1048, 1056 (9th Cir. 2016) ("§ 1332(a)(2) is an improper basis because the plaintiffs are alleged to be American citizens, and the defendants are alleged to be a mix of American citizens and foreign citizens. Because there are American citizens on both sides of the case, jurisdiction cannot be grounded in § 1332(a)(2)").

Here, the Complaint alleges that Plaintiff is a United States citizen. (Compl. ¶ 12.) Defendants Garcia and Patricia Nunez Amezcua ("Amezcua") are also alleged to be United States citizens. (Id. ¶¶ 13, 15.) The Complaint further alleges that Constellation "is a business entity with a principal place of business in Victor, New York" thereby also effectively asserting that Constellation is a U.S. citizen.2 (Id. ¶ 17.)

Thus, on the face of the Complaint, because Plaintiff, a United States citizen, has alleged that some of the defendants are also United States citizens, Plaintiff has failed to allege facts to establish subject matter jurisdiction under 28 U.S.C. § 1332(a)(2). See Savage, supra, 343 F.3d at 1039 n. 2; Louisiana Mun. Police Employees' Ret. Sys., supra, 829 F.3d at 1056.

Plaintiffs sparse Opposition, which refers the Court to his concurrent motion for dismissal of Defendant Garcia (docket no. 9.), does not establish jurisdiction under section 1332(a)(2). As will be discussed further below, a district court determines the existence, or lack thereof, of subject matter jurisdiction by looking at the facts as they existed at the time the action was brought.

B. 28 U.S.C. § 1332(a)(3)

Under 28 U.S.C. § 1332(a)(3), diversity jurisdiction exists between "citizens of different States and in which citizens or subjects of a foreign state are additional parties." 28 U.S.C. § 1332 (emphasis added). There must be complete diversity of the citizens of different states to establish jurisdiction under this section. See Transure, Inc. v. Marsh & McLennan, Inc., 766 F.2d 1297, 1298 (9th Cir. 1985) (citing Goar v. Compania Peruana de Vapores, 688 F.2d 417, 420 n. 6 (5th Cir. 1982)) (finding diversity jurisdiction not destroyed by the presence of non-diverse aliens where there is complete diversity between the United States citizens involved in the action).

Here, Defendant's motion argues that Plaintiff and Defendant Garcia are both domiciled in (and therefore citizens of) California because the Complaint alleges that both Plaintiff and Defendant Garcia "live in Calexico, California, where they have been living for the past 47 years." (Mot. at 7; Compl. ¶ 23.) Plaintiff appears to concede that both Plaintiff and Defendant Garcia are domiciled in California because in Opposition, he states: "Based on the Request to Dismiss Defendant Ana Maria Jimenez Garcia filed today, January 25, 2017 [Docket No. 8], this case should not be dismissed as there is now complete diversity." (Docket No. 9.)

Plaintiffs motion to dismiss Defendant Garcia from the action (docket no. 8) cannot save his Complaint because a federal court's jurisdiction "depends upon the state of things at the time of the action brought." Grupo Datqflwc v. Atlas Glob. Grp., L.P., 541 U.S. 567, 570 (2004) (quoting Mollan v. Torrance, 9 Wheat. 537, 539 (1824) ("It has long been the case that "the jurisdiction of the court depends upon the state of things at the time of the action brought." . . . It measures all challenges to subject-matter jurisdiction premised upon diversity of citizenship against the state of facts that existed at the time of filing—whether the challenge be brought shortly after filing, after the trial, or even for the first time on appeal.").

Thus, the Court finds that Plaintiff has also failed to establish the existence of diversity jurisdiction under section 1332(a)(3). Accordingly, Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction is GRANTED.

CONCLUSION

Constellation's Motions to Dismiss is GRANTED, and Plaintiffs Complaint is DISMISSED without prejudice. As a result, Plaintiffs Motion to Dismiss Defendant Garcia is DENIED as moot.

IT IS SO ORDERED.