govinfo:USCOURTS-cand-4_24-cv-04112-2

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United States District Court 
Northern District of California 
 
 
UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF CALIFORNIA 
 
K
EVIN E. GILMORE, 
Plaintiff, 
v. 
 
WILSHIRE QUINN CAPITAL, INC. ET AL., 
Defendants. 
 
 

 
ORDER DISMISSING CASE FOR 
LACK OF JURISDICTION 
 
Re: Dkt. Nos. 72, 78 
 
The Court previously reviewed the parties’ cross motions for summary judgment (Dkt. Nos. 
72, 78) and ordered the parties to submit supplemental briefing as to whether the Court properly has 
subject matter jurisdiction over this action (Dkt. No. 93). The Court has reviewed the parties’ briefs 
(Dkt. Nos. 94, 95) and has confirmed that it lacks subject matter jurisdiction for the reasons set forth 
below. Accordingly, the Court DISMISSES the action. 
“Federal courts are courts of limited jurisdiction. They possess only that power authorized by 
Constitution and statute[.]” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). 
They may only hear cases over which they have subject matter jurisdiction. See People of State of 
Cal. ex rel. Younger v. Andrus, 608 F.2d 1247, 1249 (9th Cir. 1979). There are two relevant bases for 
original subject matter jurisdiction: federal question jurisdiction over cases “arising under the 
Constitution, laws, or treaties of the United States[,]” and diversity jurisdiction, where “the matter in 
controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between . . . 
citizens of different States.” 28 U.S.C. §§ 1331, 1332(a). Courts have an ongoing “obligat[ion] to 
consider sua sponte whether” they have cases subject matter jurisdiction over cases in front of 
them. Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1116 (9th Cir. 2004); Leite v. Crane Co., 749 F.3d 
1117, 1121 (9th Cir. 2014). If the court determines that it lacks subject matter jurisdiction, it may 

 
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United States District Court 
Northern District of California 
dismiss the action sua sponte. Scholastic Entm’t, Inc. v. Fox Entm’t Grp., Inc., 336 F.3d 982, 985 (9th 
Cir. 2003). 
The Court lacks subject matter jurisdiction over this action. Diversity jurisdiction does not 
exist because the parties are not diverse. Plaintiff is a citizen of California, and at least one defendant 
is a citizen of California. (Dkt. No. 94.) A corporation is a citizen of (1) the state where its principal 
place of business is located, and (2) the state in which it is incorporated. 28 U.S.C. § 1332(c)(1). 
Defendant Wilshire Quinn Capital Inc.1 alone destroys diversity because it is incorporated, and has its 
principal place of business, in California. (Dkt. No. 94.) Plaintiff’s argument that defendants are 
“primarily” citizens of Delaware does not persuade because defendant Wilshire Quinn Capital Inc. is 
a citizen of only California. Plaintiff does not satisfy the complete diversity requirement. 
The Court also lacks federal question jurisdiction. “[F]ederal jurisdiction exists only when a 
federal question is presented on the face of the plaintiff’s properly pleaded complaint.” Caterpillar, 
Inc. v. Williams, 482 U.S. 386, 392 (1987). A case may “arise under” federal law in two ways. Gunn 
v. Minton, 568 U.S. 251, 257 (2013). “Most directly, a case arises under federal law when federal law 
creates the cause of action asserted.” Id. at 257. A “special and small category” of cases arise under 
federal law where “a federal issue is (1) necessarily raised, (2) actually disputed, (3) substantial, and 
(4) capable of resolution in federal court without disrupting the federal-state balance approved by 
Congress.” Id. at 258. 
Here, although plaintiff initially advanced a federal claim under the Truth in Lending Act 
(“TILA”) and the Investment Company Act (“ICA”), the Court twice dismissed those claims with 
leave to amend, which plaintiff elected to abandon. (Dkt. No. 52.) Plaintiff’s remaining claims are 
state law claims for fraud and breach of contract. (Dkt. No. 50.) Plaintiff argues that his action arises 
under federal law because the property in question was at one point involved in HUD’s affordable 
housing program, and other federal laws (including TILA and RESPA) are implicated. (Dkt. No. 95.) 
Those programs (and claims) are not necessarily raised or actually disputed. Unlike in Evergreen 
 
1 Defendants attempt to identify the citizenship of Wilshire Quinn Income Fund REIT, 
LLC based on the location of its offices in California. That is not the correct inquiry. An LLC is a 
citizen of every state in which its members are citizens. Johnson v. Columbia Props. Anchorage, 
LP, 437 F.3d 894, 899 (9th Cir. 2006). 

 
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United States District Court 
Northern District of California 
Square of Cudahy v. Wisconsin Hous. & Econ. Dev. Auth., the out-of-circuit authority that plaintiff 
cites, plaintiff’s breach-of-contract cause of action does not depend on “the proper interpretation of 
Section 8 and HUD’s implementing guidance.” 776 F.3d 463, 467 (7th Cir. 2015). The Court has 
reviewed the parties’ motions for summary judgment and has determined that neither state law claim 
implicates federal law or the interpretation of a federal policy. The Court thus lacks arising under 
jurisdiction. 
Moreover, the Court notes that the California Court of Appeal recently affirmed the superior 
court’s order sustaining defendant’s demurrer, without leave to amend, as to the same breach of 
contract and fraud claims. Even if the Court had jurisdiction over this claim, the Court would not now 
enter the fray and enter a competing judgment on the merits, particularly where plaintiff’s claims are 
likely precluded. 2 
For the reasons set forth in this Order, the Court DISMISSES this case for lack of subject matter 
jurisdiction. 
The Clerk of Court is ordered to close the case. 
This terminates Dkt. Nos. 72, 78. 
 
IT IS SO ORDERED. 
 
Dated: May 8, 2026 
______________________________________ 
Y
VONNE GONZALEZ ROGERS 
UNITED STATES DISTRICT JUDGE 
 
2 Despite entry of judgment, defendant argued that plaintiff’s claims were not precluded 
because the appeal, at the time the statement was filed, was pending. Because the Court dismisses 
for lack of jurisdiction, the Court will not address defendant’s analysis. 

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