United States District Court, D. Utah, Northern Division
MEMORANDUM DECISION AND ORDER
M. WARNER CHIEF UNITED STATES MAGISTRATE JUDGE.
parties in this case have consented to Chief Magistrate Judge
Paul M. Warner conducting all proceedings, including entry of
final judgment, with appeal to the United States Court of
Appeals for the Tenth Circuit. See 28 U.S.C. §
636(c); Fed.R.Civ.P. 73. Before the court is Plaintiff
Xat.com Limited's (“Xat”) motion for
determination of subject-matter jurisdiction. The court has
carefully reviewed the written memoranda submitted by the
parties. Pursuant to Civil Rule 7-1(f) of the Rules of
Practice for the United States District Court for the
District of Utah, the court has concluded that oral argument
is not necessary and will decide the motion on the basis of
the written memoranda. See DUCivR 7-1(f).
motion, Xat requests that the court determine whether it has
subject-matter jurisdiction over this matter. Xat asserts
that when the complaint was filed, it was incorporated and
had its principal place of business in the United Kingdom.
Xat also argues that while, at the time the complaint was
filed, Defendant Hosting Services, Inc. aka 100TB.com
(“100TB”) was incorporated in Delaware, its
principal place of business was in the United Kingdom. In
support of that argument, Xat points to evidence that,
according to Xat, shows that when the complaint was filed,
100TB's president, John Morris (“Morris”),
and vice president and treasurer, Adam Kilgour
(“Kilgour”), were overseeing 100TB's
operations from the United Kingdom. Based upon that evidence,
Xat contends that 100TB's principal place of business was
in the United Kingdom when the complaint was filed.
Consequently, Xat maintains, both it and 100TB are foreign
parties for purposes of subject-matter jurisdiction and,
therefore, the court lacks subject-matter jurisdiction.
opposes Xat's motion. To rebut the evidence that Xat
relies upon, 100TB relies upon the declaration of its vice
president, Chris Matue (“Matue”), who resides in
Utah and works in 100TB's Utah office. In that
declaration, Matue asserts that he is “responsible for
overseeing, directing and managing 100TB's business
activities from 100TB's headquarters and principal
office” in Utah and that “100TB's day-to-day
operations and business activities were managed and directed
by [him] and other senior 100TB employees in
Utah.” Matue admits that Morris and Kilgour
reside in the United Kingdom, but asserts that, as of the
date the complaint was filed, “neither of them was
involved in overseeing 100TB's daily
operations.” Matue asserts that the roles of Morris and
Kilgour primarily involved “providing input on
long-term planning and strategic guidance for
100TB.” Matue further asserts that Morris and
Kilgour “fulfilled their roles from various locations,
including 100TB's headquarters” in Utah;
“Morris and Kilgour frequently travelled to Utah,
typically on a quarterly basis, ” to participate in
certain meetings; and Morris and Kilgour “regularly
communicated with [Matue] and other 100TB personnel in Utah
via phone, email, and Skype, sometimes from the United
Kingdom and sometimes from other locations throughout the
globe.” Based upon Matue's declaration, 100TB
contends that its principal place of business is located in
Utah and, consequently, that this court has subject-matter
jurisdiction involves a court's authority to hear a given
type of case and may not be waived.” Radil v.
Sanborn W. Camps, Inc., 384 F.3d 1220, 1224 (10th Cir.
2004) (citations omitted). Subject-matter jurisdiction is to
be determined based on the facts that existed at the time the
complaint was filed. See Grupo Dataflux v. Atlas Global
Grp., L.P., 541 U.S. 567, 570-71 (2004); Grynberg v.
Kinder Morgan Energy Partners, L.P., 805 F.3d 901, 905
(10th Cir. 2015). “[B]ecause parties cannot waive
subject-matter jurisdiction, they can challenge it ‘at
any time prior to final judgment.'” City of
Albuquerque v. Soto Enters., Inc., 864 F.3d 1089, 1093
(10th Cir. 2017) (quoting Grupo Dataflux, 541 U.S.
at 571), cert. denied sub nom. Soto Enters.,
Inc. v. City of Albuquerque, N.M., 138 S.Ct. 983
(2018). “Where a party attacks the factual basis for
subject[-]matter jurisdiction, the court does not presume the
truthfulness of factual allegations in the complaint, but may
consider evidence to resolve disputed jurisdictional
facts.” Radil, 384 F.3d at 1224. “If the
court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”
establish subject[-]matter jurisdiction under 28 U.S.C.
§ 1332, a party must show that complete diversity of
citizenship exists between the parties and that the amount in
controversy exceeds $75, 000.” Radil, 384 F.3d
at 1225. Federal courts
have diversity jurisdiction over cases between citizens of
the United States and citizens of foreign states, but . . .
do not have diversity jurisdiction over cases between aliens.
More specifically, diversity is lacking . . . where the only
parties are foreign entities, or where on one side there are
citizens and aliens and on the opposite side there are only
Bayerische Landesbank, N.Y. Branch v. Aladdin Capital
Mgmt. LLC, 692 F.3d 42, 49 (2d Cir. 2012) (quotations
and citation omitted) (second alteration in original);
see also Nike, Inc. v. Comercial Iberica de Exclusivas
Deportivas, S.A., 20 F.3d 987, 991 (9th Cir. 1994)
(“Although the federal courts have jurisdiction over an
action between ‘citizens of a State and citizens or
subjects of a foreign state,' 28 U.S.C. §
1332(a)(2), diversity jurisdiction does not encompass a
foreign plaintiff suing foreign defendants . . . .”).
purposes of subject-matter jurisdiction, a corporation is a
citizen of the place where it is incorporated and has its
principal place of business. See 28 U.S.C. §
1332(c)(1). The United States Supreme Court has held
that “principal place of business” is best read
as referring to the place where a corporation's officers
direct, control, and coordinate the corporation's
activities. It is the place that Courts of Appeals have
called the corporation's “nerve center.” And
in practice it should normally be the place where the
corporation maintains its headquarters-provided that the
headquarters is the actual center of direction, control, and
coordination, i.e., the “nerve center, ”
and not simply an office where the corporation holds its
board meetings (for example, attended by directors and
officers who have traveled there for the occasion).
Hertz Corp. v. Friend, 559 U.S. 77, 92-93 (2010).
“At its heart, the nerve center test is an inquiry to
find the one location from which a corporation is ultimately
controlled. Put slightly differently, the federal court is to
look for the place where the buck stops. And where it does,
well, that's the corporation's nerve center and
principal place of ...