“the presence in the action of a single plaintiff 13 from the same State as a single defendant deprives the district court of original diversity 14 jurisdiction over the entire action.”
How later courts described this case
- “the presence in the action of a single plaintiff 13 from the same State as a single defendant deprives the district court of original diversity 14 jurisdiction over the entire action.”
Written by the judges who cited it.
The opinion
1
2
3
4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6
7 REYNALDO GONZALEZ, et al., Case No. 16-cv-03282-DMR
8 Plaintiffs, ORDER DENYING PLAINTIFFS'
MOTION FOR LEAVE TO FILE A
9 v. FOURTH AMENDED COMPLAINT
10 GOOGLE, INC., Re: Dkt. No. 154
11 Defendant.
12 In this action, Plaintiffs Reynaldo Gonzalez; the Estate of Nohemi Gonzalez; Beatriz
13 Gonzalez, individually and as the representative of the Estate of Nohemi Gonzalez; José
14 Hernandez; Rey Gonzalez; and Paul Gonzalez seek to hold Defendant Google, Inc. (“Google”)
15 liable for the November 2015 death of Nohemi Gonzalez during a coordinated terrorist attack by
16 individuals associated with the Islamic State of Iraq and Syria (“ISIS”) in Paris. Plaintiffs now
17 move for leave to file a fourth amended complaint (“FAC”). [Docket Nos. 154, 154-1 (Prop.
18 FAC).] Google opposes. [Docket No. 157.] This matter is suitable for determination without oral
19 argument. Civ. L.R. 7-1(b). For the following reasons, the motion is denied.
20 I. BACKGROUND AND PROCEDURAL HISTORY
21 A. District Court Proceedings
22 Plaintiff Reynaldo Gonzalez filed this lawsuit in June 2016 against Google, Twitter, Inc.
23 (“Twitter”), and Facebook, Inc. (“Facebook”). He alleged claims under the Anti-Terrorism Act
24 (“ATA”), 18 U.S.C. § 2333, on the theory that social media platforms, including YouTube, a free
25 online video platform owned and operated by Google, played a role in the rise of ISIS and in
26 facilitating its international terrorist attacks. This included ISIS’s November 2015 attack in Paris
27 during which his daughter Nohemi Gonzalez was murdered. Defendants jointly moved to dismiss,
1 15(a)(1)(B) that added claims in his capacity as successor-in-interest to Nohemi Gonzalez’s estate
2 (“the Estate”) and Beatriz Gonzalez, Nohemi Gonzalez’s mother, as a nominal defendant under
3 California Code of Civil Procedure section 382. [Docket Nos. 36, 55 (Am. Compl.) ¶ 13.]
4 Defendants again jointly moved to dismiss the amended complaint. Beatriz Gonzalez was
5 appointed administrator of the Estate in January 2017 and Reynaldo Gonzalez, Beatriz Gonzalez,
6 and the Estate subsequently dismissed their claims against Twitter and Facebook. [Docket Nos.
7 74, 75.] In April 2017, the court granted an unopposed motion for leave to file a second amended
8 complaint against Google. [Docket No. 94.]
9 Reynaldo Gonzalez, the Estate, and Beatriz Gonzalez filed the second amended complaint
10 (“SAC”) in April 2017, adding as Plaintiffs Nohemi Gonzalez’s brothers Rey Gonzalez and Paul
11 Gonzalez and Nohemi Gonzalez’s stepfather José Hernandez. [Docket No. 95 (SAC).] The SAC
12 asserted four claims under the ATA civil remedy provisions, 18 U.S.C. § 2333(a) and (d).1 Claims
13 1 and 2 alleged that Google was liable under 18 U.S.C. § 2333(d) for aiding and abetting acts of
14 international terrorism and for conspiring with ISIS in furtherance of ISIS’s acts of international
15 terrorism. Claim 3 alleged that Google was liable under section 2333(a) for violating 18 U.S.C. §
16 2339A, a federal criminal statute which prohibits knowingly providing “material support and
17
1 18 U.S.C. § 2333(a) provides for a private right of action for damages sustained in an act of
18
international terrorism:
19
Any national of the United States injured in his or her person,
property, or business by reason of an act of international terrorism, or
20
his or her estate, survivors, or heirs, may sue therefor in any
appropriate district court of the United States and shall recover
21
threefold the damages he or she sustains and the cost of the suit,
including attorney’s fees.
22
18 U.S.C. § 2333(a). Section 2333(d) provides that liability attaches to those who aid or abet an
23
act of international terrorism or conspire with a person who commits such an act:
24
In an action under subsection (a) for an injury arising from an act of
international terrorism committed, planned, or authorized by an
25
organization that had been designated as a foreign terrorist
organization . . . liability may be asserted as to any person who aids
26
and abets, by knowingly providing substantial assistance, or who
conspires with the person who committed such an act of international
27
terrorism.
1 resources” to terrorists. Claim 4 alleged that Google was liable under section 2333(a) for violating
2 18 U.S.C. § 2339B(a)(1), which prohibits “knowingly provid[ing] material support or resources”
3 to a designated foreign terrorist organization.
4 Google moved to dismiss the SAC on the grounds that the claims are barred by Section
5 230 of the Communications Decency Act of 1996 (“CDA”), 47 U.S.C. § 230(c)(1), which protects
6 from liability “(a) a provider or user of an interactive computer service (b) that the plaintiff seeks
7 to treat as a publisher or speaker (c) of information provided by another information content
8 provider.” Fields v. Twitter, 200 F. Supp. 3d 964, 969 (N.D. Cal. 2016) (citing Barnes v. Yahoo!,
9 Inc., 570 F.3d 1096, 1100-01 (9th Cir. 2009)). Google also argued that the claims were
10 insufficiently pleaded. The court granted the motion in October 2017, concluding that the claims
11 were barred by Section 230 and granting leave to amend. Gonzalez v. Google, Inc., 282 F. Supp.
12 3d 1150, 1171 (N.D. Cal. 2017).
13 Plaintiffs filed a third amended complaint (“TAC”) in November 2017. [Docket No. 111.]
14 The TAC alleged four claims for relief under the ATA that were identical or nearly identical to the
15 claims alleged in the SAC (claims 1-4) and added a new theory supporting claims 3 and 4 based
16 upon Google’s alleged revenue sharing with ISIS. The TAC also added two new claims for relief
17 under section 2333(a): claim 5 was for concealment of material support and resources to a
18 designated foreign terrorist organization in violation of 18 U.S.C. § 2339C(c) and claim 6 was for
19 violation of terrorism sanctions regulations issued pursuant to the International Emergency
20 Economic Powers Act (“IEEPA”), 50 U.S.C. §§ 1701-1707, 31 C.F.R. Part 594.
21 Google again moved to dismiss all of Plaintiffs’ claims as barred by Section 230 of the
22 CDA and on the ground that the claims were insufficiently pleaded. The court granted the motion
23 to dismiss the TAC in August 2018. Gonzalez v. Google, Inc. (“Gonzalez I”), 335 F. Supp. 3d
24 1156 (N.D. Cal. 2018). The court found that, except as to the new revenue-sharing allegations,
25 claims 1 through 4 and claims 5 and 6 fell “within the scope of section 230(c)(1)’s grant of
26 immunity and are therefore barred.” Id. at 1174-75.
27 In addition, the court held that the TAC failed to state direct liability claims under section
1 3-6). See id. at 1176-79 (discussing Fields v. Twitter, 881 F.3d 739, 744, 748-49 (9th Cir. 2018)).
2 Accordingly, the court dismissed claims 3-6, including Plaintiffs’ revenue sharing claims, “for
3 failure to adequately plead proximate causation.” Id. at 1179. As Plaintiffs had already been
4 given an opportunity to amend the complaint to avoid Section 230 immunity, the court dismissed
5 all claims other than the revenue sharing claims with prejudice. It granted Plaintiffs “one final
6 opportunity” to amend the revenue sharing claims. Id. Plaintiffs did not file an amended
7 complaint by the court-ordered deadline and the court entered judgment for Google on August 31,
8 2018. [Docket No. 130.] Plaintiffs appealed.
9 B. Ninth Circuit Proceedings
10 In June 2021, the Ninth Circuit affirmed in a consolidated opinion that addressed this case
11 along with Taamneh v. Twitter, 17-CV-04107-EMC (N.D. Cal.), and Clayborn v. Twitter, Nos.
12 17-CV-06894-LB (N.D. Cal.), 18-CV-00543-LB (N.D. Cal.), two similar cases alleging that
13 Google, Twitter, and Facebook were liable for terrorist attacks committed by ISIS supporters
14 around the world. Gonzalez v. Google LLC (“Gonzalez II”), 2 F.4th 871 (9th Cir. 2021). The
15 Ninth Circuit affirmed the dismissal of Plaintiffs’ ATA claims, holding that Section 230 barred
16 those claims except to the extent that they were based on allegations that Google shared
17 advertising revenue with ISIS because the “revenue-sharing allegations are not directed to the
18 publication of third-party information.” Id. at 897-98. The court next held that the revenue-
19 sharing allegations failed to adequately allege “the requirements necessary to establish direct
20 liability for an act of international terrorism pursuant to § 2333(a).” Id. at 901 (citing 18 U.S.C. §
21 2331(1)). The court also held that Plaintiffs failed to state a claim for secondary liability under
22 section 2333(d)(2) for aiding and abetting an act of international terrorism because the TAC did
23 not allege that the purported assistance was “substantial.” Id. at 906-07. Finally, the court held
24 that Plaintiffs failed to state a claim for secondary liability under section 2333(d)(2) for conspiracy
25 because the allegations in the TAC did not “plausibly suggest that Google reached an agreement
26 with ISIS to carry out the Paris Attacks that caused” Nohemi Gonzalez’s death. Id. at 907.
27 In addressing Taamneh, the Ninth Circuit held that the operative complaint stated an
1 allegations that the defendants knowingly assisted ISI and that their assistance was substantial. Id.
2 at 908-10. The court affirmed the dismissal of the Clayborn plaintiffs’ aiding-and-abetting claim
3 on the ground that the operative complaint did not “plausibly allege that ISI committed, planned,
4 or authorized the” fatal shooting at issue. Id. at 911-12.
5 C. Supreme Court Proceedings
6 The Gonzalez Plaintiffs sought review in the Supreme Court of the Ninth Circuit’s
7 application of Section 230, and the Taamneh Defendants sought review of the Ninth Circuit’s
8 interpretation of the ATA’s aiding-and-abetting provision. See Opp’n 5. The Supreme Court
9 granted both petitions.
10 The Supreme Court decided both cases in May 2023. In Twitter, Inc. v. Taamneh, 598
11 U.S. 471 (2023), the Court reversed the Ninth Circuit’s ruling on the merits of the Taamneh
12 plaintiffs’ aiding-and-abetting theory under the ATA. The Court held that to state an aiding-and-
13 abetting claim under the ATA, the plaintiffs must plausibly allege that “defendants gave such
14 knowing and substantial assistance to ISIS that they culpably participated in” the “act of
15 international terrorism that injured the plaintiffs.” Id. at 497. The Court described “the
16 fundamental question of aiding-and-abetting liability” as follows: “Did defendants consciously,
17 voluntarily, and culpably participate in or support the relevant wrongdoing?” and concluded that
18 the answer was no. Id. at 505.
19 The Court also affirmed the Ninth Circuit’s holding that the revenue-sharing allegations
20 against Google failed to state an aiding-and-abetting claim because there were no allegations that
21 any revenue sharing amounted to “substantial assistance” to “the [particular terrorist] attack” that
22 injured plaintiffs or to “every single terrorist act committed by ISIS.” Id. at 505-06. The Court
23 reversed the judgment without remanding or giving the Taamneh plaintiffs any further opportunity
24 to amend their complaint. Id. at 506.
25 The Supreme Court did not reach whether Section 230 barred Plaintiffs’ claims in a
26 separate opinion in Gonzalez. Gonzalez v. Google LLC (“Gonzalez III”), 598 U.S. 617, 622
27 (2023). It noted that “Plaintiffs did not seek review of the Ninth Circuit holdings regarding their
1 Twitter . . . it has become clear that plaintiffs’ complaint—independent of § 230—states little if
2 any claim for relief.” Id. The Court made clear that it was “not resolv[ing] either the viability of
3 plaintiffs’ claims as a whole or whether plaintiffs should receive further leave to amend.” Id.
4 D. Proceedings on Remand
5 On July 3, 2023, the Ninth Circuit remanded the case to this court. [Docket No. 145.] The
6 court held a case management conference on October 18, 2023 at which it ordered Plaintiffs to
7 provide Google with a proposed Fourth Amended Complaint by December 18, 2023 and ordered
8 the parties to meet and confer prior to the filing of a motion for leave to amend. [Docket No. 151.]
9 The court subsequently extended the December 18, 2023 deadline at Plaintiffs’ request and set an
10 extended briefing schedule on any motion for leave to amend. [Docket Nos. 152, 153.]
11 On February 29, 2024, Plaintiffs filed their motion for leave to amend along with a
12 proposed FAC. The court extended the deadline for Plaintiffs’ reply and continued the hearing on
13 the motion at Plaintiffs’ request. [Docket No. 161.] Plaintiffs raised arguments and authority on
14 reply regarding the court’s subject matter jurisdiction over the proposed FAC to which Google did
15 not have an opportunity to respond. Accordingly, the court ordered Google to file a surreply
16 responding to Plaintiffs’ arguments regarding subject matter jurisdiction and continued the hearing
17 on the motion to July 11, 2024. [Docket No. 163.] Google timely filed its surreply. [Docket No.
18 165.]
19 E. Allegations in the Proposed FAC
20 The proposed FAC adds new allegations regarding Google’s “distribut[ion] [of] materials
21 that are not requested by users,” see Prop. FAC ¶¶ 491-95, and alleges two claims, both of them
22 new. First, it alleges a claim under French law, Article 1382 of the Code Civil. According to
23 Plaintiffs, Article 1382 provides, “[e]very act whatever of man that causes damage to another,
24 obliges him by whose fault it occurred to repair it.” Id. at ¶¶ 513, 514. The proposed FAC alleges
25 that Google “committed ‘fault’ under French law by failing and refusing to regulate, control, limit,
26 and remove YouTube content which encouraged terrorist action” and that Plaintiffs were injured
27 as a result. Id. at ¶¶ 520, 521. Second, the proposed FAC alleges negligence under California
1 based on 18 U.S.C. § 2339A. Id. at ¶¶ 524-34.
2 II. LEGAL STANDARD
3 Under Federal Rule of Civil Procedure 15(a), leave to amend should be granted as a matter
4 of course, at least until the defendant files a responsive pleading. Fed. R. Civ. P. 15(a)(1). After
5 that point, Rule 15(a) provides generally that leave to amend the pleadings before trial should be
6 given “freely . . . when justice so requires.” Fed. R. Civ. P. 15(a)(2). “This policy is to be applied
7 with extreme liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir.
8 2003) (quotation omitted). In the absence of an “apparent” reason, such as undue delay, bad faith
9 or dilatory motive, prejudice to the opposing party, futility of the amendments, or repeated failure
10 to cure deficiencies in the complaint by prior amendment, it is an abuse of discretion for a district
11 court to refuse to grant leave to amend a complaint. Foman v. Davis, 371 U.S. 178, 182 (1962);
12 Lockheed Martin Corp. v. Network Sols., Inc., 194 F.3d 980, 986 (9th Cir. 1999). These factors do
13 not “merit equal weight,” and “it is the consideration of prejudice to the opposing party that carries
14 the greatest weight.” Eminence Capital, 316 F.3d at 1052. “Granting leave to amend does not
15 necessarily mean that the underlying allegations ultimately have merit.” FlatWorld Interactives
16 LLC v. Apple Inc., 12-CV-01956-WHO, 2013 WL 6406437, at *3 (N.D. Cal. Dec. 6, 2013).
17 “Rather, ‘[a]bsent prejudice, or a strong showing of any of the remaining [ ] factors, there exists a
18 presumption under Rule 15(a) in favor of granting leave to amend.’” Id. (quoting Eminence
19 Capital, 316 F.3d at 1052).
20 III. DISCUSSION
21 Plaintiffs’ argument in favor of amendment is brief: they contend that they “reasonably
22 believed” that the ATA, 18 U.S.C. § 2333, “was uniquely adapted to their grievance,” but the
23 Supreme Court’s decision in Twitter “greatly limited” the statute “resulting in Plaintiffs being
24 unable to state a viable claim under the now-limited § 2333.” Mot. 3. They state, “[n]ow that §
25 2333 has been removed from the picture,” they seek to file the FAC “presenting their grievance
26 through the lens of other causes of action—one under French law, and one a hybrid state-federal
27 claim of negligence under California law with embedded federal law issues.” Id. Plaintiffs
1 contend that “doing so before the Supreme Court’s decision in Twitter would have been
2 counterintuitive, since § 2333 was such a perfect fit for [their] claims.” Id. Plaintiffs do not
3 address any of the Rule 15(a) factors.
4 Google opposes the motion. It argues that the proposed amendment is futile for several
5 reasons, including because the court lacks subject matter jurisdiction over the proposed FAC.
6 Google also argues that amendment should be denied because Plaintiffs unduly delayed asserting
7 the new claims and Google would be prejudiced by the amendment. The court first addresses
8 whether it would have subject matter jurisdiction over the proposed FAC.
9 Plaintiffs’ proposed FAC alleges two claims: violation of the French Code Civil and
10 negligence under California law. It alleges that the court has subject matter jurisdiction based on
11 federal question jurisdiction under 28 U.S.C. § 1331 and diversity jurisdiction under 28 U.S.C. §
12 1332, and that it has supplemental jurisdiction “over any state-law claims” under 28 U.S.C. §
13 1367. Prop. FAC Id. at ¶¶ 26-28.2 On reply, Plaintiffs rely only on federal question and diversity
14 jurisdiction. See Reply 9-13.
15 A. Federal Question Jurisdiction
16 The proposed FAC alleges, “[t]his Court has jurisdiction over this matter pursuant to 28
17 U.S.C. § 1331, as Plaintiff’s [sic] state law cause of action [for negligence] turns on embedded
18 issues of federal law and is therefore a hybrid state-and-federal law claim.” Prop. FAC ¶ 27. As
19 noted, the proposed FAC alleges a theory of negligence per se based on 18 U.S.C. § 2339A. Id. at
20 ¶¶ 524-34.3 Under the doctrine of negligence per se, the standard of conduct set forth in a relevant
21 statute, ordinance, or regulation is adopted as the duty of care, and negligence is presumed when
22 the statute or regulation is violated. Jones v. Awad, 39 Cal. App. 5th 1200, 1210 (2019)
23 (discussing Cal. Evid. Code § 669). “Negligence per se is an evidentiary doctrine, rather than an
24 independent cause of action.” Plaintiffs argue that Google was negligent because it violated the
25
2 The proposed FAC also alleges jurisdiction under the ATA, 18 U.S.C. §§ 2333, 2334, but does
26
not allege a claim under that statute. Plaintiffs do not argue on reply that subject matter
jurisdiction exists under the ATA.
27
1 duty of care set forth in 18 U.S.C. § 2339A, which criminalizes knowingly providing “material
2 support and resources” to terrorists. The parties dispute whether this proposed claim gives rise to
3 federal question jurisdiction under 28 U.S.C. § 1331.
4 “Article III of the Constitution gives the federal courts power to hear cases ‘arising under’
5 federal statutes.” Merrell Dow Pharm., Inc. v. Thompson, 478 U.S. 804, 807 (1986). In Merrell
6 Dow, the Supreme Court held that “a complaint alleging a violation of a federal statute as an
7 element of a state cause of action, when Congress has determined that there should be no private,
8 federal cause of action for the violation, does not state a claim ‘arising under the Constitution,
9 laws, or treaties of the United States.’” Id. at 817 (quoting 28 U.S.C. § 1331) (state claim based in
10 part on allegation that drug company misbranded drug in violation of federal law and was thus
11 presumptively negligent under Ohio law did not arise under federal law). In Grable & Sons Metal
12 Products, Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308, 314 (2005), the Court
13 clarified that in federal question cases, the relevant inquiry is whether “a state-law claim
14 necessarily raise[s] a stated federal issue, actually disputed and substantial, which a federal forum
15 may entertain without disturbing any congressionally approved balance of federal and state
16 judicial responsibilities.” Importantly, Grable held that in its entirety, Merrell Dow was not to the
17 contrary. Id. at 316-18. “Merrell Dow thought it improbable that the Congress, having made no
18 provision for a federal cause of action, would have meant to welcome any state-law tort case
19 implicating federal law ‘solely because the violation of the federal statute is said to [create] a
20 rebuttable presumption [of negligence] . . . under state law.’” Id. at 319 (alterations in original)
21 (quoting Merrell Dow, 478 U.S. at 811-12). “Merrell Dow’s analysis thus fits within the
22 framework of examining the importance of having a federal forum for the issue, and the
23 consistency of such a forum with Congress’s intended division of labor between state and federal
24 courts.” Id.
25 The Supreme Court has explained that, for Grable purposes, a substantial federal question
26 would be at issue if resolution of the federal question would be both “[1] dispositive of the case
27 and . . . [2] controlling in numerous other cases.” See Empire HealthChoice Assurance, Inc. v.
1 existed because it appeared that the only issue contested in the case was whether the IRS had
2 complied with a federal statute and the federal question “presented a nearly ‘pure issue of law,’
3 one ‘that could be settled once and for all and thereafter would govern numerous tax sale cases.’”
4 Id. (citations omitted). In contrast, a substantial federal question is less likely to exist where a case
5 is “fact-bound and situation specific.” Empire, 547 U.S. at 701. See, e.g., City of Oakland v. BP
6 PLC, 969 F.3d 895, 906-07 (9th Cir. 2020) (holding state law claim for public nuisance that
7 purportedly “implicates a variety of ‘federal interests,’ including energy policy, national security,
8 and foreign policy” did not raise a substantial question of federal law; “a state-law claim that is
9 ‘fact-bound and situation-specific’ is not the type of claim for which federal-question jurisdiction
10 lies.”). Under Grable, “federal jurisdiction over a state law claim will lie if a federal issue is: (1)
11 necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal
12 court without disrupting the federal-state balance approved by Congress.” Gunn v. Minton, 568
13 U.S. 251, 258 (2013) (citing Grable, 545 U.S. at 314).
14 Like the state law claim at issue in Merrell Dow, Plaintiffs’ proposed negligence claim
15 rests in part on the allegation that Google violated a federal statute and thus was presumptively
16 negligent under state law. Plaintiffs do not distinguish Merrell Dow or cite any cases supporting
17 finding federal question jurisdiction on similar facts. See, e.g., Hawkins v. Kaiser Permanente
18 Sacramento, No. 22-cv-00034-KJM-JDP (PS), 2024 WL 494022, at *3 (E.D. Cal. Feb. 8, 2024)
19 (holding state law negligence claim based on alleged violations of federal Emergency Medical
20 Treatment and Labor Act “does not raise a substantial federal issue such that federal question
21 jurisdiction exists over their state-law tort claim.”). Instead, they focus on Grable.
22 Under Grable’s four-part test to determine whether jurisdiction is proper, the federal issue
23 must be “(1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution
24 in federal court without disrupting the federal-state balance approved by Congress.” Gunn, 568
25 U.S. at 258. All four requirements must be satisfied to establish that jurisdiction is proper. See id.
26 Plaintiffs address the third and fourth requirements, arguing that “[t]here is a compelling federal
27 interest in this litigation” because “revelation of how much assistance Google provided to ISIS,
1 manner in which it was assisting ISIS . . . would be of manifest interest and concern to the United
2 States intelligence agencies and the Department of Defense.” They also contend that “[d]isputes
3 about assistance to foreign terrorist organizations” are sufficiently rare so that permitting this case
4 to be heard in federal court “would not disrupt the normal allocation of responsibilities between
5 state and federal courts.” Reply 9-10. Plaintiffs do not address the first and second requirements,
6 which alone is fatal to their argument.
7 The first requirement, that the federal issue must be “necessarily raised,” is not satisfied
8 here. “[O]riginal federal jurisdiction is unavailable unless it appears that some substantial,
9 disputed question of federal law is a necessary element of one of the well-pleaded state claims[.]”
10 Franchise Tax Bd. of State of Cal. v. Constr. Laborers Vacation Tr. for S. California, 463 U.S. 1,
11 13 (1983). “When a claim can be supported by alternative and independent theories—one of
12 which is a state law theory and one of which is a federal law theory—federal-question jurisdiction
13 does not attach because federal law is not a necessary element of the claim.” Nevada v. Bank of
14 Am. Corp., 672 F.3d 661, 675 (9th Cir. 2012) (quoting Rains v. Criterion Sys., Inc., 80 F.3d 339,
15 344 (9th Cir. 1996)). In this case, the duty that supports Plaintiffs’ proposed negligence claim is
16 grounded in both state and federal law. See Prop. FAC ¶ 524 (alleging Google owed Plaintiffs “a
17 duty of care under California law not to assist individuals or organizations who might use that
18 assistance to engage in terrorist violence . . .”). Therefore, the “necessarily raised” requirement is
19 not satisfied because Plaintiffs could prevail on their proposed negligence claim without relying
20 on federal law.
21 Additionally, the federal issue is not “substantial” for purposes of federal question
22 jurisdiction. “[I]t is not enough that the federal issue be significant to the particular parties in the
23 immediate suit[.]” Gunn, 568 U.S. at 260. Rather, “[t]he substantiality inquiry under Grable
24 looks instead to the importance of the issue to the federal system as a whole,” id., and federal
25 issues are not substantial if they are “fact-bound and situation-specific.” City of Oakland, 969
26 F.3d at 905. The issue of whether Google is liable for negligence based on violations of 18 U.S.C.
27 § 2339A is not a “pure issue of law” that would be “both dispositive of the case and . . .
1 and Google they hope to reveal through this case; this only serves to highlight that the case will be
2 driven by its specific facts and circumstances.
3 In sum, Plaintiffs do not allege a basis for federal question jurisdiction under Grable.
4 B. Diversity Jurisdiction
5 Federal subject matter jurisdiction under 28 U.S.C. § 1332(a) requires complete diversity
6 of citizenship and an amount in controversy in excess of $75,000. Parties are diverse only when
7 the parties are “citizens of different states.” 28 U.S.C. § 1332(a)(1). A natural person’s state
8 citizenship is determined by his or her state of domicile. Kanter v. Warner-Lambert Co., 265 F.3d
9 853, 857 (9th Cir. 2001). “A person’s domicile is her permanent home, where she resides with the
10 intention to remain or to which she intends to return. A person residing in a given state is not
11 necessarily domiciled there, and thus is not necessarily a citizen of that state.” Id. (internal citation
12 omitted).
13 To establish diversity of citizenship, the proposed FAC must allege that at the time of
14 filing, Plaintiffs were not citizens of California or Delaware, the states of Google’s citizenship.
15 See Prop. FAC ¶ 23; see Grupo Dataflux v. Atlas Global Grp., L.P., 541 U.S. 567, 571 (2004)
16 (“all challenges to subject-matter jurisdiction premised upon diversity of citizenship [are
17 measured] against the state of facts that existed at the time of filing”). The proposed FAC does
18 not do so. “To be a citizen of a state, a natural person must first be a citizen of the United States.”
19 Kanter, 265 F.3d at 857. The proposed FAC alleges that Plaintiffs Reynaldo Gonzalez, Rey
20 Gonzalez, and José Hernandez are citizens of Mexico. Prop. FAC ¶¶ 17, 20, 21.4 However, even
21 though it alleges U.S. citizenship for Plaintiffs Beatriz Gonzalez and Paul Gonzalez, it does not
22 state their state citizenship now or at the time of filing. See id. at ¶¶ 19, 22. The proposed FAC’s
23 failure to allege their states of residence is “fatal” to Plaintiffs’ assertion of diversity jurisdiction.
24 See Kanter, 265 F.3d at 858.
25 As to Nohemi Gonzalez, the proposed FAC alleges only that she was a U.S. citizen and
26 resided in France at the time of her death. Prop. FAC ¶ 18. However, it also alleges that she was
27
1 California-born “student at California State University Long Beach spending a semester abroad”
2 in Paris at the time of her death. Id. at ¶¶ 18, 420, 422. Accordingly, Google argues that “[n]o
3 allegations suggest that she would have been a citizen of any state other than California, making
4 the legal representative of her estate a California citizen” only and defeating diversity. Opp’n 14.
5 In their reply, Plaintiffs admit that complete diversity of citizenship does not exist because
6 Nohemi Gonzalez was a citizen of California at the time of her death and Beatriz Gonzalez, in her
7 capacity as the Estate’s representative, is deemed a citizen of California. Reply 11. They also
8 admit that Beatriz Gonzalez (in her personal capacity) and Paul Gonzalez were domiciled in
9 California at the time they were added to the FAC, although they contend that Beatriz Gonzalez
10 and Paul Gonzalez are now “domiciled in New Mexico.” Id. at 12. In other words, Plaintiffs
11 admit that the requirements of diversity jurisdiction are not satisfied. See Exxon Mobil Corp. v.
12 Allapattah Servs., Inc., 545 U.S. 546, 553 (2005) (“the presence in the action of a single plaintiff
13 from the same State as a single defendant deprives the district court of original diversity
14 jurisdiction over the entire action.”). Nonetheless, they argue that the “jurisdictional defect can be
15 cured” by dismissing the Estate and Beatriz Gonzalez in her capacity as its representative from the
16 lawsuit under Federal Rule of Civil Procedure 21, arguing that “[n]either of these plaintiffs is an
17 indispensable party.” Id. at 11-12.
18 Rule 21 provides that a court may sua sponte “at any time, on just terms, add or drop a
19 party.” Fed. R. Civ. P. 21. Rule 21 “grants a federal district or appellate court the discretionary
20 power to perfect its diversity jurisdiction by dropping a nondiverse party provided the nondiverse
21 party is not indispensable to the action under Rule 19.” Sams v. Beech Aircraft, 625 F.2d 273, 277
22 (9th Cir. 1980). Under Federal Rule of Civil Procedure 19(b), there are four factors for
23 determining whether a party is “indispensable”:
24 (1) the extent to which a judgment rendered in the person’s absence
might prejudice that person or the existing parties; (2) the extent to
25 which any prejudice could be lessened or avoided . . . ; (3) whether a
judgment rendered in the person’s absence would be adequate; and
26 (4) whether the plaintiff would have an adequate remedy if the action
were dismissed for nonjoinder.
27
1 foregoing factors, and Google disputes that the Estate and Beatriz Gonzalez in her capacity as its
2 representative are not indispensable parties. See Surreply 3-4.
3 There are other diversity problems. As noted, Plaintiffs admit that Beatriz Gonzalez (in
4 her personal capacity) and Paul Gonzalez were domiciled in California at the time of filing and
5 thus citizens of California. See Reply 12. Plaintiffs propose dropping them as parties and then
6 amending the FAC to add them back, citing Grupo. Id. But Grupo does not support such a move.
7 While acknowledging that dismissal of a party that destroys diversity is a “method of curing a
8 jurisdictional defect [that] had long been an exception to the time-of-filing rule,” 541 U.S. at 572,
9 Grupo held that dismissal for lack of subject-matter jurisdiction was the only option available
10 where “[t]he purported cure arose not from a change in the parties to the action, but from a change
11 in the citizenship of a continuing party.” Id. at 574-75. Grupo reaffirmed the time-of-filing rule,
12 under which courts measure “challenges to subject-matter jurisdiction premised on diversity of
13 citizenship against the state of facts that existed at the time of filing.” Id. at 571.
14 In sum, Plaintiffs have not shown that the Estate and Beatriz Gonzalez in her capacity as
15 its representative are dispensable parties. Moreover, the parties were not diverse at the time of
16 filing. Accordingly, the court concludes that amendment would be futile because it lacks subject
17 matter jurisdiction over the proposed FAC based on diversity citizenship and the proposed FAC
18 does not allege a basis for federal question jurisdiction. Plaintiffs’ motion for leave to amend is
19 denied.5
20 //
21 //
22 //
23 //
24 //
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5 As the court concludes that the proposed FAC is futile because it does not allege a basis for
IV. CONCLUSION
For the foregoing reasons, Plaintiffs’ motion for leave to amend is denied. The clerk shall
2
enter judgment and close the case.
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