The case of the day is Absolute Swine Insemination Co. (H.K.) v. Absolute Swine Insemination Co. (D. Nev. 2012). The facts of the case, though no doubt extremely charming, are not relevant to the case of the day. The plaintiff asserted only common law claims, and so the court had subject-matter jurisdiction only because of the parties’ diversity of citizenship. The plaintiff was a Hong Kong company. Two of the defendants were Nevada corporations. The third, Mark Anderson, was apparently more peripatetic. The complaint alleged that he resided in Reno, Nevada, San Ramon, California, and in the Philippines. The plaintiff had trouble serving process on Anderson and sought leave under FRCP 4(f)(3) to serve him by mail in the Philippines.

The defendants (other than Anderson) raised a very interesting point: if Anderson resides in the Philippines, then even if he is a US citizen, he is not the citizen of any state, and yet is also not an alien, and so for jurisdictional purposes his presence in the case deprives the court of jurisdiction.¹Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826 (1989). The defendants also suggested that the plaintiff had failed to exhaust alternatives before seeking leave to effect service under FRCP 4(f)(3).

The judge correctly rejected the view that FRCP 4(f)(3) requires first resort to other means of service and held that service by mail was permissible in the circumstances. But the court declined to rule on the jurisdictional issue, holding that it could be raised “in an appropriate motion after service is effected.”

I think the court was wrong to duck the jurisdictional issue. It could well be that Anderson was present in Philippines but that his residence was in the United States, in which case there’s no inconsistency between the plaintiff’s motion and the existence of jurisdiction. But it is the plaintiff’s burden to show jurisdiction, and the complaint, by not clearly alleging Anderson’s citizenship for diversity purposes, doesn’t really meet this burden. And the court has a duty to examine its jurisdiction sua sponte. So if I were the judge I would probably have issued an order to show cause why the case should not be dismissed, and I would give the parties a chance to take some jurisdictional discovery aimed at determining Anderson’s citizenship for diversity purposes at the time of the filing of the complaint.

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  Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826 (1989).