FILED JAN 9 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS -- 1 of 4 -- 2 BROWNE,… v. Santa Cruz County Bank; John Geringer; Christopher A. Luck; Keith Everts Rode

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAF STRUDLEY, individually and as
trustee of the Charles Strudley Estate;
RUTH STRUDLEY; MATTHEW
HANSEN; ALAN COMEAUX; STEVEN
GOODMAN; ELAINE M. CARRIGAN,
individually and as trustee of the Casanova
Family Trust; GREGORY WYNNE;
DARRELL TORCHIO; SHARON
TORCHIO; JON IFLAND; MONICA
IFLAND; PETER JACOBSON; TERRY
LORANT; MICHAEL SINGER; SALLY
EASTMAN; KAREN COGSWELL;
LINDA ERICKSON; LOREE VIAL;
KAREN DANIEL; ROBERT DANIEL, Jr.;
CHAD G. CLEMENS, Sr.; BRIAN
CONWAY; DAVID DAVISON;
ROSEMARY DAVISON; VIN SION;
KRISTY SION; JOE KATZMAN; JAN
LEININGER; MICHAEL ATHAN; ALAIN
DUMESNY; MARK MURRAY; SUE ANN
MURRAY; ROBERT ALAN
NOTTINGHAM; KRISTINE TAYLOR;
ROBERT A. FRANK; TERI FRANK,
individually and as trustee of the Frank
Charitable Remainder Trust; JEFFREY
FRANK; INGRID HILLS, individually and
as trustee of the Edward E. Hills Fund;
ARTHUR CAISSE; MARK KING;
JERRYNE KING; ARNOLD ROBINSON;
BEVERLY ROBINSON; PAUL D.
No. 17-17233
D.C. No. 5:15-cv-05106-EJD
MEMORANDUM*
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
JAN 9 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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BROWNE, individually and as co-trustee of
the Browne Family Trust; JOYCE
BROWNE; MARK P. WITZIG; DAVID A.
BYRON; SCOTT HUGHES; ALAN
PEEVERS; LISA PEEVERS; ROBERT
LAYTON; DEBBIE ATWOOD LAYTON;
HOLLY PAETAU; JULIE PANUSHKA;
INGRID NUDELMAN,
Plaintiffs-Appellants,
v.
SANTA CRUZ COUNTY BANK; JOHN
GERINGER; CHRISTOPHER A. LUCK;
KEITH EVERTS RODE,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Judge, Presiding
Submitted December 19, 2018**
San Francisco, California
Before: CALLAHAN, N.R. SMITH, and MURGUIA, Circuit Judges.
This appeal presents the issue of whether Plaintiffs may amend their
complaint as a matter of right pursuant to Federal Rule of Civil Procedure 15(a) to
cure a jurisdictional defect in their original complaint. The district court held that
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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they could not. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
In line with Supreme Court precedent, this Circuit has adhered to the time-
of-filing rule, which provides that “[s]ubject matter jurisdiction must exist as of the
time the action is commenced.” Morongo Band of Mission Indians v. Cal. State Bd.
of Equalization, 858 F.2d 1376, 1380 (9th Cir. 1988) (citing Mollan v. Torrance,
22 U.S. 537, 538 (1824)). A review of Plaintiffs’ original complaint demonstrates
that Plaintiffs failed to allege any basis for diversity jurisdiction or federal-question
jurisdiction. Plaintiffs did not allege diversity of citizenship in their original
complaint. See 28 U.S.C. § 1332. Nor did Plaintiffs allege a federal cause of action
in their original complaint or state-law claims that raised a substantial question of
federal law. See Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677,
689–90 (2006) (“A case aris[es] under federal law within the meaning of § 1331 . .
. if a well-pleaded complaint establishes either that federal law creates the cause of
action or that the plaintiff’s right to relief necessarily depends on resolution of a
substantial question of federal law.”) (alterations in original) (internal quotation
marks omitted).
Plaintiffs argue that 28 U.S.C. § 1653 allowed them to amend their
complaint to cure any jurisdictional defect. However, § 1653 only allows for
amendments of “incorrect [allegations] about jurisdiction that actually exists, and
not defects in the jurisdictional facts themselves.” Newman-Green, Inc. v. Alfonzo-

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Larrain, 490 U.S. 826, 831 (1989). Here, Plaintiffs sought to create jurisdiction,
not clarify it, when they amended their complaint to add a federal cause of action.
Plaintiffs’ reliance on Rockwell International Corp. v. United States, 549
U.S. 457 (2007) is inapposite because Rockwell stands for the proposition that a
plaintiff may voluntarily amend its original complaint to remove federal
jurisdiction (except when a case has been removed to federal court). See id. at
473–75 & n.6. Plaintiffs amended their complaint for the exact opposite purpose in
this case. Therefore, the district court correctly looked to the original complaint in
concluding that it lacked subject matter jurisdiction over this case.
AFFIRMED.

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