884 F2d 1395 Sellers v. Espresso Inc M
884 F.2d 1395
Unpublished Disposition
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Jay L. SELLERS, Plaintiff-Appellant,
v.
ESPRESSO, INC., Janet M. Fryberger and Rainier National
Bank, Defendants-Appellees.
No. 88-3670.
United States Court of Appeals, Ninth Circuit.
Submitted July 25, 1989.*
Decided Aug. 29, 1989.
Before KILKENNY, WIGGINS and NOONAN, Circuit Judges.
MEMORANDUM**
Jay L. Sellers appeals pro se from the district court's dismissal of his state law tort action for, inter alia, want of subject matter jurisdiction. We review de novo the district court's determination of subject matter jurisdiction, see Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (CA9 1989), and will accept its factual findings on jurisdictional issues unless clearly erroneous. See id. We affirm.
It is axiomatic that diversity of citizenship between and among parties can confer subject matter jurisdiction in a federal district court over a state law claim. 28 U.S.C. Sec. 1332(a)(1); Kraus v. Santa Fe S. Pac. Corp., Nos. 87-4295/4423, slip op. at 7166 (CA9 July 3, 1989). However, because federal courts are courts of limited jurisdiction, "a federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears." Stock West, Inc., 873 F.2d at 1225. Thus, it is up to the party asserting diversity of citizenship to show that such is in fact the case. Lew v. Moss, 797 F.2d 747, 749 (CA9 1986).
Although Sellers claimed a California domicile, his complaint listed a Seattle, Washington address. He later notified the court that his address had been changed, not to California, but to another location in Seattle. In fact, none of his court filings listed a California address, and when Rainier National Bank moved for summary judgment on the issue of lack of subject matter jurisdiction, Sellers offered nothing to controvert Rainier's argument that diversity of citizenship was absent. In light of these facts, we agree with the district court's conclusion that Sellers failed to meet his burden of proof with respect to the issue of diversity of citizenship as a basis for the district court to exercise subject matter jurisdiction. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (where non-moving party bears burden of proof on dispositive issue, response to motion for summary judgment must go beyond pleadings and designate specific facts showing existence of genuine issue of material fact).
As indicated above, the record before the court affirmatively shows a lack of diversity, and because we find no error in the district court's ruling on the question of subject matter jurisdiction, we must deny Sellers' motions for an evidentiary hearing and for leave both to file a supplemental brief and to supplement the record on appeal. Accordingly, and for the same reason, we need not and do not reach the issue of the propriety of the district court's ruling on the res judicata effect of the previous judgment, and deny Espresso, Inc.'s request for attorney's fees.
AFFIRMED.