Digital Media Solutions, LLC v. Zeetogroup, LLC

[6] 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA [9] 10 DIGITAL MEDIA SOLUTIONS, LLC, Case No.: 22-CV-1184 JLS (AHG) 11 Plaintiff, ORDER (1) DISMISSING CASE 12 v. WITHOUT PREJUDICE FOR LACK OF SUBJECT-MATTER 13 ZEETOGROUP, LLC, JURISDICTION; (2) OVERRULING 14 Defendant. PLAINTIFF’S EVIDENTIARY OBJECTIONS; AND (3) DENYING [15] AS MOOT MOTION FOR 16 SUMMARY JUDGMENT [17] (ECF Nos. 1, 6, 7, 17) [20] 21 Presently before the Court is Plaintiff Digital Media Solutions, LLC’s Complaint 22 (“Compl.” ECF No. 1). Plaintiff contends that this Court has subject-matter jurisdiction 23 over the case under 28 U.S.C. § 1332 , Compl. at 2, otherwise known as “diversity 24 jurisdiction.” Plaintiff’s Complaint, however, did not present the Court with enough 25 information to determine whether diversity jurisdiction exists. See generally ECF No. 7 26 (the “Order” or “OSC”). On September 15, 2022, the Court ordered Plaintiff to show cause 27 / / / 28 / / / 1 as to why subject-matter jurisdiction existed. See generally id. Plaintiff filed a Response 2 to the Order (“Response,” ECF No. 8), and Defendant Zeetogroup, LLC filed a Reply1 to 3 Plaintiff’s Response (“Reply,” ECF No. 9). Plaintiff then filed an Objection to Defendant’s 4 Reply (“Obj.,” ECF No. 17). Having considered the Parties’ arguments and the law, the 5 Court DISMISSES WITHOUT PREJUDICE Plaintiff’s Complaint. 6 BACKGROUND 7 Plaintiff and Defendant Zeetogroup, LLC are limited liability companies (“LLCs”) 8 that provide digital advertising services. Compl. ¶¶ 5–6. Plaintiff alleges that on August 9 23, 2018, Plaintiff and Defendant “entered into a written contract . . . , whereby the parties 10 agreed that [Plaintiff] would manage its general consumer website using [Defendant’s] ad11 serving technology.” Id. ¶ 7 . Part of the agreement, according to Plaintiff, was to share 12 revenue earned through Defendant’s monetization of Plaintiff’s online traffic. Id. ¶ 8 . 13 Plaintiff claims that both parties performed under the agreement for about three years, but 14 Defendant then withheld $944,176.27 owed to Plaintiff for revenue that Plaintiff generated 15 using Defendant’s platform between July and September of 2021. Id. ¶¶ 9–10. Plaintiff 16 filed the Complaint on August 12, 2022, asserting state law causes of action for breach of 17 contract, breach of the implied duty of good faith and fair dealing, and violation of 18 California’s unfair competition law. Id. ¶¶ 12–26. 19 Plaintiff claims the Court has subject-matter jurisdiction over this case on the basis 20 of diversity jurisdiction. Id. ¶ 3 . As discussed in further detail below, for one LLC to sue 21 another LLC, the members of each LLC must be completely diverse for a court to exercise 22 subject-matter jurisdiction over the case. See Johnson v. Columbia Properties Anchorage, [23] 437 F.3d 894, 899 (9th Cir. 2006). Here, both Plaintiff and Defendant are LLCs, but 24 Plaintiff’s Complaint provided no information on the citizenship of each LLC’s members. 25 See generally Compl. Noting this deficiency, the Court ordered Plaintiff to show cause as [28] 1 Defendant captioned this filing as a “Response” to Plaintiff’s Response. The Court will refer to 1 to why diversity jurisdiction existed over this matter. See generally OSC. Both parties 2 responded to the OSC, with Plaintiff alleging complete diversity between the members and 3 Defendant objecting. See generally Response; Reply. 4 LEGAL STANDARD 5 “Courts have an independent obligation to determine whether subject-matter 6 jurisdiction exists, even when no party challenges it.” Hertz Corp. v. Friend, 559 U.S. 77 , 7 94 (2010). Federal courts are “presumed to lack subject matter jurisdiction in a particular 8 case unless the contrary affirmatively appears.” Cohen v. Syme, 120 F. App’x 746 (9th 9 Cir. 2005). If a district court lacks subject-matter jurisdiction over an action, the action 10 must be dismissed. Fed. R. Civ. P. 12(h)(3). 11 District courts have “original jurisdiction” over civil actions where the amount in 12 controversy exceeds $75,000 and is between “citizens of different States.” 28 U.S.C. 13 § 1332(a)(1). “The party seeking to invoke federal jurisdiction under 28 U.S.C. § 1332 14 bears the burden of demonstrating that grounds for diversity exist, that diversity is 15 complete, and its claim is supported with ‘competent proof’ by a preponderance of the 16 evidence.” Baja Devs. LLC v. Loreto Partners, No. CV-09-756-PHX-LOA, 2010 WL 17 1758242, at *2 (D. Ariz. Apr. 30, 2010), report and recommendation adopted sub nom. 18 Baja Devs. LLC v. TSD Loreto Partners, 2010 WL 2232196 (June 3, 2010); see also 19 Raghav v. Wolf, 522 F. Supp. 3d 534 , 546 (D. Ariz. 2021) (“It is presumed that a cause of 20 action lies outside the Court’s limited jurisdiction and, therefore, the burden of establishing 21 subject matter jurisdiction is on the party bringing suit.”); Kanter v. Warner-Lambert Co., [22] 265 F.3d 853, 857 (9th Cir. 2001) (“Absent unusual circumstances, a party seeking to 23 invoke diversity jurisdiction should be able to allege affirmatively the actual citizenship of 24 the relevant parties.”). 25 Diversity jurisdiction requires “that the parties be in complete diversity,” Matheson 26 v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003), meaning “all 27 plaintiffs must have citizenship different than all defendants,” Mireles v. Wells Fargo Bank, 28 N.A., 845 F. Supp. 2d 1034, 1057 (C.D. Cal. 2012). “[C]orporate citizenship for diversity 1 purposes is determined both by the corporation’s place of incorporation and its principal 2 place of business.” China Basin Properties, Ltd. v. One Pass, Inc., 812 F. Supp. 1038 , 3 1040 (N.D. Cal. 1993). On the other hand, “[i]n order to be a citizen of a State within the 4 meaning of the diversity statute, a natural person must both be a citizen of the United States 5 and be domiciled within the State.” Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826 , 6 828 (1989). 7 “A person’s domicile is her permanent home, where she resides with the intention 8 to remain or to which she intends to return.” Kanter, 265 F.3d at 857 . A person’s domicile 9 is determined at the time the suit is filed and is based on a number of factors, including 10 “current residence, voting registration and voting practices, location of personal and real 11 property, location of brokerage and bank accounts, location of spouse and family, 12 membership in unions and other organizations, place of employment or business, driver’s 13 license and automobile registration, and payment of taxes.” Lew v. Moss, 797 F.2d 747 , 14 750 (9th Cir. 1986). Moreover, “[t]here is a rebuttable presumption that, once established, 15 a person’s last known domicile remains their domicile until and ‘unless rebutted with 16 sufficient evidence of change.’” Buscher v. Edelman, No. CV209680JVSASDX, 2021 WL 17 969208, at *4 (C.D. Cal. Mar. 4, 2021). 18 “Under Supreme Court authority, U.S. citizens domiciled abroad are considered 19 ‘stateless’ for purposes of § 1332(a) and destroy complete diversity.” Marcus v. 20 Alexandria Real Est. Equities, Inc., No. 2:21-CV-08088-SB-SK, 2022 WL 2815904 , at *3 21 (C.D. Cal. May 3, 2022) (citing Newman-Green, Inc., 490 U.S. at 828–29); see also 22 Cresswell v. Sullivan & Cromwell, 922 F.2d 60, 68 (2d Cir. 1990) (“United States citizens 23 who are domiciled abroad are neither citizens of any state of the United States nor citizens 24 or subjects of a foreign state, and § 1332(a) does not provide that the courts have 25 jurisdiction over a suit to which such persons are parties.”). Moreover, “if a party is a dual 26 citizen, the Ninth Circuit requires that a court consider only the American citizenship for 27 purposes of determining diversity jurisdiction”; accordingly, dual citizens living abroad are 28 / / / 1 also considered “stateless” and will destroy complete diversity. Marcus, 2022 WL 2 2815904, at *3. 3 For diversity purposes, “an LLC is a citizen of every state of which its 4 owners/members are citizens.” Johnson v. Columbia Properties Anchorage, 437 F.3d 894 , 5 899 (9th Cir. 2006). “[W]here an LLC is a member of another LLC, the citizenship of the 6 ‘sub-member’ LLC is likewise defined by the citizenships of its own members.” 19th Cap. 7 Grp., LLC v. 3 GGG’s Truck Lines, Inc., No. CV 18-2493 PA (RAOX), 2018 WL 6219886 , 8 at *2 (C.D. Cal. Apr. 3, 2018). Thus, for one LLC to sue another in federal court on the 9 basis of diversity jurisdiction, the LLCs’ members, including the members of any “sub10 member” LLCs, must be completely diverse. Moreover, because an LLC’s citizenship is 11 determined by the citizenship of its members, it necessarily follows that a “stateless” 12 member renders the LLC “stateless” as well. See Galaxy Precision Mfg., Inc. v. Grupo 13 Indus. San Abelardo S.A. de C.V., No. 21-CV-84, 2022 WL 1908978 , at *1 (N.D. Ill. June 14 3, 2022) (finding no diversity jurisdiction where sole member of defendant LLC was 15 stateless); Thompson v. Deloitte & Touche LLP, 503 F. Supp. 2d 1118, 1123 (S.D. Iowa 16 2007) (finding stateless partner would render limited liability partnership stateless as well); 17 Bugsby Prop. LLC v. Alexandria Real Est. Equities, Inc., No. 19-CV-9290 (VEC), 2020 18 WL 1974147 , at *4 (S.D.N.Y. Apr. 24, 2020) (noting plaintiff LLC’s sole member was 19 “stateless” citizen and “would have rendered [plaintiff LLC] a non-diverse party for the 20 purposes of establishing subject matter jurisdiction”). 21 JURISDICTIONAL FACTS AND EVIDENCE 22 I. Plaintiff’s Citizenship 23 Plaintiff Digital Media Solutions, LLC is wholly owned by Digital Media Solutions 24 Holdings, LLC. Response at 3. As such, it is necessary to determine the citizenship of 25 Digital Media Solutions Holdings, LLC’s members to assess this Court’s subject-matter 26 jurisdiction. See 19th Cap. Grp., LLC, 2018 WL 6219886 , at *2. 27 / / / 28 / / / 1 Digital Media Solutions Holdings, LLC is owned by four entities: Aimtell Holdco, 2 Inc. (“Aimtell”); CEP V DMS US Blocker Co. (“CEP”); Clairvest Group, Inc. 3 (“Clairvest”); and Prism Data, LLC. See Response at 3. Aimtell and CEP are corporations 4 incorporated under the laws of the State of Delaware with their principal places of business 5 each in the State of Florida. Id. Clairvest is a corporation incorporated under the laws of 6 the Province of Ontario, Canada, with its principal place of business in Ontario, Canada. [7] Id. at 4 . Prism Data, LLC’s members are Joe Marinucci, Fernando Borghese, Matthew 8 Goodman, Jonathan Kat, David Shteif, and Luis Ruelas. Id. Mr. Ruelas is a citizen of the 9 State of New Jersey, and the remaining members are citizens of the State of Florida. Id. 10 Therefore, Plaintiff Digital Media Solutions, LLC is a citizen of the States of Florida, 11 Delaware, and New Jersey, as well as the foreign state of Canada. 12 II. Defendant’s Citizenship 13 Plaintiff alleges that Defendant’s sole member, Stephen Goss, is a citizen of the State 14 of California. Id. at 4 . In support of this allegation, Plaintiff provides a declaration from 15 Fernando Borghese, the co-founder and Chief Operating Officer of Digital Media 16 Solutions, Inc., and a Statement of Information from the California Secretary of State. See 17 Declaration of Fernando Borghese (“Borghese Decl.,” ECF No. 8-1); see also id. at Ex. 1. 18 Borghese’s “information and belief” as to Mr. Goss’s citizenship is based entirely on the 19 Statement of Information. See id. ¶ 10 . The Statement of Information indicates Mr. Goss 20 shares a San Diego address with Zeetogroup, LLC: 925 B Street, Suite 303, San Diego, 21 California 92101 (the “Address”). See id. at Ex. 1. The Statement of Information is 22 acknowledged by Mr. Goss and dated March 25, 2022. Id. at Ex. 1. According to Plaintiff, 23 the Statement of Information demonstrates that Mr. Goss is a citizen of the State of 24 California; therefore, complete diversity exists because none of Plaintiff’s members are 25 citizens of the State of California. See Response at 5. 26 Defendant, on the other hand, claims that diversity jurisdiction does not exist 27 because Mr. Goss is a “stateless alien.” Reply at 2. Defendant argues that Plaintiff’s 28 assumption regarding Mr. Goss’s citizenship is incorrect, as Mr. Goss “has not lived in the 1 United States since the beginning of the COVID-19 pandemic and is currently residing in 2 Dubai.” Declaration of Shayne Cardwell (“Cardwell Decl.,” ECF No. 9-1) ¶ 3. “Given 3 the ‘stateless alien’ status of Mr. Goss, and lack of evidence presented by [Plaintiff], 4 complete diversity does not exist,” according to Defendant. Reply at 3. 5 ANALYSIS 6 Here, whether the Court can exercise diversity jurisdiction over the case ultimately 7 depends on Mr. Goss’s citizenship, as he is the sole member of Zeetogroup, LLC. Neither 8 Party, however, provides conclusive evidence of Mr. Goss’s citizenship. 9 On the one hand, Plaintiff provides only a Statement of Information from the 10 California Secretary of State, which indicates that Mr. Goss shares a California address 11 with Zeetogroup, LLC, and, for that matter, Zeetogroup, LLC’s California agent for service 12 of process purposes. See Borghese Decl. at Ex. 1. In its reply, Zeetogroup, LLC describes 13 the address as its principal place of business. Reply at 3. Thus, the address listed does not 14 appear to be a residential address, but rather Zeetogroup, LLC’s business address. Without 15 more, this address provides insufficient evidence of Mr. Goss’s domicile. See Webb v. 16 Wilhelm LLC, No. 221CV01263RGKSHK, 2021 WL 4749786 , at *2 (C.D. Cal. Oct. 12, 17 2021) (noting address listed on Statement of Information for defendant LLC’s members, 18 which matched business address for LLC, did not appear to be residential, and was 19 therefore insufficient to establish domicile); Laurelwood Cleaners, LLC v. Am. Express 20 Co., No. CV 20-2973 PA (AGRX), 2020 WL 2318206 , at *3 (C.D. Cal. May 11, 2020) 21 (finding insufficient evidence of California domicile where defendants presented only two 22 addresses gleaned from Statement of Information that reflected the street address for 23 plaintiff LLC’s principal place of business and mailing address); Motel Inn, LLC v. 922324 6678 Quebec Inc., No. CV 20-8203 PA (MAAX), 2020 WL 8509662 , at *1 (C.D. Cal. 25 Sept. 10, 2020) (“[T]he Statement of Information upon which Defendants rely does not 26 even appear to provide information concerning the residence of either of the alleged 27 members of Plaintiff, and instead lists a business address for them that is identical to 28 Plaintiff’s corporate address. As a result, Defendants’ allegations related to Plaintiff’s 1 citizenship are insufficient to invoke this Court’s diversity jurisdiction.”). Even if the Court 2 accepts as true Mr. Borghese’s declaration on “information and belief” that Mr. Goss is a 3 “resident of the State of California,” Borghese Decl. ¶ 10, “[a] person residing in a given 4 state is not necessarily domiciled there, and thus is not necessarily a citizen of that state.” 5 Kanter, 265 F.3d 853, 857 ; see also Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d 6 1330 , 1341–42 (11th Cir. 2011) (“Domicile is not synonymous with residence; one may 7 temporarily reside in one location, yet retain domicile in a previous residence.”). 8 On the other hand, Defendant provides equally weak evidence regarding the 9 domicile of Mr. Goss. Defendant claims Mr. Goss “resides in Dubai” and is therefore a 10 diversity-destroying “stateless alien.” Reply at 3. But Defendant does not state how long 11 Mr. Goss has been living in Dubai or whether he intends to remain there. See Reply at 2; 12 see also Kanter, 265 F.3d 853, 857 (9th Cir. 2001) (“A person’s domicile is her permanent 13 home, where she resides with the intention to remain or to which she intends to return.”). 14 All that is certain, based on the evidence provided by Defendant, is that Mr. Goss left the 15 United States at some point around the beginning of the Covid-19 pandemic, presumably 16 winter or spring 2020; he has not resided in the United States since; and, at some time after 17 his departure from the United States, he took up residence in Dubai. See generally 18 Cardwell Decl. The Cardwell Declaration supporting Defendant’s Reply suffers from the 19 same deficiency as the Borghese Declaration supporting Plaintiff’s Response, in that it too 20 merely speaks to Mr. Goss’s residence. See Cardwell Decl. ¶ 3. But “an individual is not 21 necessarily domiciled where he or she resides.” Motel Inn, LLC, 2020 WL 8509662 , at *1. 22 Moreover, “living abroad without intending to live in a specific place does not change 23 one’s domicile.” Buscher v. Edelman, No. CV209680JVSASDX, 2021 WL 969208 , at *3 24 (C.D. Cal. Mar. 4, 2021). In the absence of evidence showing Mr. Goss’s intent to remain 25 in Dubai, the Court cannot accurately determine his citizenship. 26 As neither Party has conclusively established Mr. Goss’s citizenship for diversity 27 purposes, the Court must determine which Party bears the burden of proof and, 28 consequently, has failed to meet said burden. Two principles guide this inquiry. 1 First, “the party asserting diversity jurisdiction bears the burden of proof.” Kanter, [2] 265 F.3d 853 , 857–58 (citing Lew, 797 F.2d at 749 ); see also McNutt v. Gen. Motors 3 Acceptance Corp. of Indiana, 298 U.S. 178, 189 (1936) (“In the nature of things, the 4 authorized inquiry is primarily directed to the one who claims that the power of the court 5 should be exerted in his behalf. As he is seeking relief subject to this supervision, it follows 6 that he must carry throughout the litigation the burden of showing that he is properly in 7 court.”); Raghav, 522 F. Supp. 3d at 546; Resnik v. La Paz Guest Ranch, 289 F.2d 814 , 8 819 (9th Cir. 1961) (“[T]he burden of proving federal jurisdiction is upon the party 9 asserting it.”). Specifically, “[t]he party asserting diversity jurisdiction must justify her 10 allegations by a preponderance of evidence.” LaVoy v. Morris, No. 2:13-CV-01008-APG, [11] 2013 WL 6844770 , at *3 (D. Nev. Dec. 13, 2013) (citing McNutt, 298 U.S. at 189 ). Here, 12 Plaintiff is asserting the existence of diversity jurisdiction and therefore bears the burden 13 of proof. Plaintiff, however, has provided weak evidence regarding the citizenship of 14 Defendant, while Defendant specifically denies the existence of diversity jurisdiction based 15 on Mr. Goss’s alleged status as a “stateless alien.” 16 Second, “[t]here is a rebuttable presumption that, once established, a person’s last 17 known domicile remains their domicile until and ‘unless rebutted with sufficient evidence 18 of change.’” Buscher, 2021 WL 969208 , at *4. The problem here, of course, is that 19 Plaintiff has not established a prior domicile for Mr. Goss, so there is no presumption to 20 rebut. See Herrick Co. v. SCS Commc’ns, Inc., 251 F.3d 315 , 324 (2d Cir. 2001) (“[A] 21 party seeking to challenge diversity by alleging a change of domicile does not . . . bear the 22 burden of proving that change if the party seeking to establish diversity has not carried its 23 (prior) burden of establishing a specific initial domicile from which the change would be a 24 departure.”). 25 Accordingly, the Court concludes that Plaintiff has failed to demonstrate by a 26 preponderance of evidence that Mr. Goss is a citizen of the State of California as opposed 27 to a “stateless alien.” Plaintiff’s failure to adequately allege complete diversity renders the 28 Court incapable of exercising diversity jurisdiction here. See Kanter, 265 F.3d at 858 1 (“[Defendants’] failure to specify [p]laintiffs’ state citizenship was fatal to [d]efendants’ 2 assertion of diversity jurisdiction.”); Branon v. Debus, 289 F. App’x 181, 182 (9th Cir. 3 2008) (finding the “district court correctly dismissed [plaintiff’s] final claim . . . on the 4 ground that [plaintiff] had not met his burden of demonstrating that diversity jurisdiction 5 exists”). 6 EVIDENTIARY OBJECTIONS 7 Plaintiff objects to the admissibility of certain statements contained within the 8 Declaration of Shayne Cardwell, as well as its admissibility in general. Specifically, 9 Plaintiff argues (1) that Cardwell’s statement that Stephan Goss is a member of 10 ZeetoGroup, LLC lacks foundation and is an improper legal conclusion; (2) that Cardwell’s 11 statements regarding Goss’s current residence are inadmissible hearsay and lack personal 12 knowledge and foundation; and (3) that a defect in the oath renders the entire declaration 13 improper. See generally Obj. 14 Plaintiff’s first objection is OVERRULED. Plaintiff’s own response to the Order 15 to Show Cause uses the Statement of Information, which clearly indicates that Stephan 16 Goss is the sole member of ZeetoGroup, LLC. Moreover, Cardwell states he has personal 17 knowledge of ZeetoGroup, LLC’s ownership structure as the Chief Revenue Officer, and 18 that Stephan Goss is a member of ZeetoGroup, LLC. Cardwell Decl. ¶ 2. Further, whether 19 Goss is a member of ZeetoGroup, LLC is a question of fact, not law. 20 Plaintiff’s second objection is likewise OVERRULED. Even if the Court assumes 21 the statement is hearsay, at the summary-judgment stage, “hearsay evidence produced in 22 an affidavit may be considered . . . if the declarant could later present the evidence through 23 direct testimony.” Fraser v. Goodale, 342 F.3d 1032, 1037 (9th Cir. 2003) (citing J.F. 24 Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1542 (3d Cir. 1990)). Accordingly, 25 the Court finds Defendant’s declaration to be sufficient evidence to support the Reply. 26 Additionally, Cardwell states he has “personal knowledge of the facts contained in [the] 27 declaration.” Cardwell Decl. ¶ 1. 28 / / / 1 Finally, Plaintiff's third objection is OVERRULED. Cardwell’s declaration is 2 |}made “under penalty of perjury, under the law of The United States of California.” See 3 || Cardwell Decl. {| 3 (emphasis added). This is clearly a typographical error and does not 4 ||render the entire declaration inadmissible. See Lamoureux vy. AnazaoHealth Corp., No. 5 3:03CV01382 WIG, 2010 WL 4875870 , at *2 (D. Conn. Nov. 18, 2010) (“[U]nder 28 6 U.S.C. § 1746 , an unsworn declaration, which is dated and signed by the declarant ‘under 7 ||penalty of perjury,’ and verified as ‘true and correct,’ may be used in lieu of a sworn 8 || affidavit.”). 9 CONCLUSION 10 In light of the foregoing, the Court DISMISSES WITHOUT PREJUDICE 11 Plaintiff's Complaint.2 Additionally, the Court OVERRULES each of □□□□□□□□□□□ 12 evidentiary objections. Plaintiff MAY FILE an amended complaint within thirty (30) days 13 || of the date on which this Order is electronically docketed. Should Plaintiff elect to file an 14 |}amended complaint, it must cure the deficiencies noted herein and must be complete in 15 |{itself without reference to Plaintiff's prior Complaint. See S.D. Cal. CivLR 15.1. Any 16 |/claims not realleged in the amended complaint will be considered waived. See Lacey v. 17 || Maricopa Cnty., 693 F.3d 896, 925, 928 (9th Cir. 2012). 18 IT IS SO ORDERED. 19 || Dated: November 2, 2022 tt 0 on. Janis L. Sammartino United States District Judge [23] 24 || 25 In light of the Court’s dismissal of the Complaint, the Court also DENIES AS MOOT Defendant’s pending Motion for Summary Judgment (ECF No. 6) directed to that pleading. See, e.g., White v. Indymac 26 || Bank, FSB, No. CV. 09-00571 DAE-KSC, 2011 WL 1483928 , at *3 (D. Haw. Apr. 18, 2011) (denying as moot motions for summary judgment after sua sponte dismissing complaint with leave to amend); Agustin 27 v. Scribner, No. C 08-4660 PJH (PR), 2010 WL 986632 , at *2 (N.D. Cal. Mar. 17, 2010) (after granting 22 motion to dismiss with leave to amend, noting that “[t]he motion for summary judgment, which is directed to the complaint that is dismissed in this order, will be denied as moot.”).