author: RESTANI, Judge:

text:
    Kulvir Singh BARAPIND, Plaintiff-Appellant, v. GOVERNMENT OF the REPUBLIC OF INDIA; State Government of Punjab; The Punjab Police, Defendants-Appellees.
    No. 14-16983
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted October 20, 2016 San Francisco, California
    Filed December 21, 2016

      Emily M. Alban (argued) and Clifton S. Elgarten, Crowell & Moring, Washington, D.C.; Jaspreet K. Singh, International Center for Advocates Against Discriminar tion, Portland, Oregon; for Plaintiff-Appellant.
    Juan C. Basombrio (argued) and Katherine J. Santón, Dorsey & Whitney LLP, Costa Mesa, California, for Defendants-Appellees.

      Before: CARLOS T. BEA and SANDRA S. IKUTA, Circuit Judges, and JANE A. RESTANI, Judge.

       The Honorable Jane A. Restani, Judge for the United States Court of International Trade, sitting by designation.

   OPINION

RESTANI, Judge:

.Plaintiff-Appellant Kulvir Singh Bara-pind (“Barapind”) appeals the district court’s order dismissing his complaint for lack of subject matter jurisdiction. We hold that the district court did not have jurisdiction over Barapind’s claim because the Defendants-Appellees, the Government of the Republic of India, the State Government of Punjab, and the Punjab Police (collectively, “Indian government”), did not waive their sovereign immunity through their diplomatic communications with the United States. Accordingly, we affirm.

BACKGROUND

Barapind, an Indian citizen and a Sikh, entered the United States on April 25, 1993, and soon thereafter applied for asylum and withholding of deportation. Bara-pind alleges that, in India, he had joined a Sikh-nationalist, political organization that supported the secession of the State of Punjab from India. He maintains that, due to his involvement with that organization, the “Indian security forces” arrested him multiple times and subjected him to torture.

On November 29, 1994, while litigation relating to Barapind’s immigration claims was pending, the Indian government submitted a request for Barapind’s extradition pursuant to an extradition treaty. See Extradition Treaty between the U.S. & Gr. Brit. & Exch. of Notes Extending the Applicability of the Treaty to Palestine & Trans-Jordan., Gr. Brit,-U.S., art. 9, Dec. 22, 1931, 47 Stat. 2122. On September 18, 1997, “[t]he United States filed a complaint on India’s behalf’ in the United States District Court for the Eastern District of California and “requested a warrant to bring Barapind before an extradition court for a hearing to determine extraditability.” Barapind v. Enomoto, 400 F.3d 744, 747 (9th Cir. 2005). Ultimately, on November 9, 2005, the district court certified Bara-pind’s extraditability for three of the murder charges brought against him in India. In re Extradition of Singh, Nos. 01-6215 OWW, 98-5489 OWW, 2005 WL 3030819, at *1 (E.D.C.A Nov. 9, 2005).

Barapind sought relief from extradition pursuant to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment (“the Convention”) by submitting an application to the United States Department of State (“the Department”). Barapind argued before the Department that under the Convention, as implemented by the Foreign Affairs Reform and Restructuring Act of 1998 (“FARRA”), the United States would violate 22 C.F.R. § 95.2(b) if it extradited Barapind to India because he would “more likely than not” be tortured there, that diplomatic assurances would be insufficient to guarantee that he would not be tortured, and that he would be denied a fair trial in India. Thereafter, the Department and the Indian government exchanged a series of diplomatic-.notes and, in those notes (“the Understanding”), the Indian government stated, that Barapind would not be tortured.

The substance of the Understanding is found in internal Department memoranda. In response to a January 13, 2006, request by the United States for India to “assess the merit of Barapind’s [torture] claim” due to the United States’s obligations under the Convention and 22 C.F.R. § 95.2, the Indian government, through its Ministry of External Affairs, provided the following response on February 7, 2006:

India has signed [the Convention]. As a signatory, India has good-faith obligation not to act against the objectives and purposes of the Convention. The Indian constitution provides for the protection of life and personal liberty.... India has legislation for the protection of human rights.... Indian criminal law prohibits the use of force or causing hurt to extort confession. Persons violating these provisions are subject to prosecution and imprisonment....
Thus [Barapind] on extradition to India will be dealt in accordance with the law. He will be entitled to all rights of de-fence, protection, and remedies available and shall not be subject to any kind of torture.

ER 242-43. Similarly, in response to a March 7,. 2006, follow-up request from the United States, the Indian government provided the following response on March 28, 2006:

[Barapind] on extradition to India, will be dealt with in accordance with the law. He will be entitled to all the rights of defence, protection and remedies available and shall not be subjected to torture, as defined in [the Convention].
... India as a signatory to the Torture Convention has a good faith obligation not to act against the objectives and purposes of the convention. Indian criminal law prohibits the use of force or causing hurt to extort confession. The judicial-decisions have interpreted the law to cover not only the physical hurt but the mental derangement/sufferings also. Persons violating these provisions are subject to prosecution and imprisonment.

ER 384.

Following these assurances, in June 2006 the Department surrendered Bara-pind to the Indian government. After standing trial on the three criminal charges, in May 2008, Barapind was acquitted on all three charges. Barapind alleges that eventually he resumed his religious and political activities in India. On September 20, 2012, Indián police forces arrested Barapind and allegedly subjected him to acts of torture from September 21-25, 2012.

On May 7, 2013, Barapind filed the instant complaint, arguing that the Indian government violated the Understanding when it subjected Barapind to post-extradition torture. The Indian government moved to dismiss on several grounds, including a factual challenge to subject matter jurisdiction. On September 26, 2014, the district court dismissed Barapind’s complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, holding that the Indian government had not waived its sovereign immunity. Barapind appeals.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo questions of law, including determinations of immunity under the Foreign Sovereign Immunities Act of 1976 (“FSIA”). Embassy of the Arab Republic of Egypt v. Lasheen, 603 F.3d 1166, 1170 (9th Cir. 2010); Exp. Grp. v. Reef Indus., Inc., 54 F.3d 1466, 1469 (9th Cir. 1995).

When, as here, a defendant asserts foreign sovereign immunity through a factual challenge and offers evidence to dispute a plaintiffs jurisdictional allegations, “no presumptive truthfulness- attaches to plaintiffs allegations” and the plaintiff “has the burden of going forward with evidence by offering proof that one of the FSIA exemptions applies.” Terenkian v. Republic of Iraq, 694 F.3d 1122, 1131 (9th Cir. 2012) (quoting Doe v. Holy See, 557 F.3d 1066, 1073 (9th Cir. 2009)); Siderman de Blake v. Republic of Arg., 965 F.2d 699, 708 n.9 (9th Cir. 1992). If the plaintiff meets its burden, then the defendant “bears the burden of proving by a preponderance of the evidence that the exception to sovereign immunity does not apply.” Terenkian, 694 F.3d at 1131. Even if there are material facts in dispute, we “may still evaluate the merits of the jurisdictional claims.” See id. Additionally, we review for clear error a district court’s factual findings on jurisdictional issues. Adler v. Fed. Republic of Nigeria, 107 F.3d 720, 723 (9th Cir. 1997).

DISCUSSION

Barapind argues that the district court had subject matter jurisdiction over his claim because the Indian government, through its reference in the Understanding to the Convention and its diplomatic assurances not to torture Barapind, implicitly waived its sovereign immunity. Bara-pind contends that this interpretation is appropriate because India has only signed, but not ratified, the Convention and, therefore, the reference to the Convention is a reference to law of the United States. We disagree.

The FSIA is the “sole basis” upon which jurisdiction may be obtained over a foreign state. Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989). Thus, if a foreign state is immune from suit, jurisdiction is lacking. See id.Foreign states, including their political subdivisions, agencies, and instrumentalities, are typically immune from suit in federal and state courts in the United States. 28 U.S.C. §§ 1603(a), 1604. The FSIA, however, does provide for waivers of such immunity by the foreign state “either explicitly or by implication! J’ Id. at § 1605(a)(1). “The waiver exception is narrowly construed.” Joseph v. Office of the Consulate Gen. of Nigeria, 830 F.2d 1018, 1022 (9th Cir. 1987); see also Corporación Mexicana de Servicios Marítimos, S.A. de C.V. v. M/T Respect, 89 F.3d 650, 655 (9th Cir. 1996) (“[Cjourts rarely find that a nation has waived its sovéreign immunity without strong evidence that this is what the foreign state intended.” (quoting Rodriguez v. Transnave Inc., 8 F.3d 284, 287 (5th Cir. 1993))).

We have explained that an implied waiver, may be found ordinarily in only the following three circumstances: “(1) a foreign state has agreed to arbitration in another country; (2) a foreign state has agreed that a contract is governed by the law of a particular country; and (3) a foreign state has filed a responsive pleading in a case without raising the defense of sovereign immunity.” In re Republic of Philippines, 309 F.3d 1143, 1151 (9th Cir. 2002) (quoting Joseph, 830 F.2d at 1022). However, these circumstances are not “an exclusive list of the circumstances giving rise to implied waivers,” and we have also recognized an implied waiver “where a written agreement entered into by a foreign sovereign ‘contemplates adjudication of a dispute by the United States courts.’ ” Siderman de Blake, 965 F.2d at 721 (quoting Joseph, 830 F.2d at 1023).

The Understanding is not an implicit waiver of sovereign immunity by the Indian government. Not only does the Understanding not match any of the three circumstances that ordinarily give rise to an implied waiver, but it also does not demonstrate that India intended the Understanding to be enforceable in United States courts.

First, Barapind has not met his burden of demonstrating that any of the three circumstances that ordinarily give rise to an implied waiver are implicated- here. The Understanding is -plainly neither an agreement to arbitrate nor a responsive pleading. Moreover, we need not address whether the notes formed a “contract” between the Department and the-Indian government, because-even if they did, they do not specify that the.law of a particular country should govern that contract, nor do they otherwise “contemplate! ] adjudication of a dispute by the United States courts.” Joseph, 830 F.2d at 1023.

Nor does the Understanding demonstrate an agreement regarding which country’s law would govern. We have explained in this context that a choice-of-law provision should clearly identify which country’s law governs, a requirement that flows from our rule that we construe waivers narrowly. Specifically, in Siderman de Blake, we explained that our finding of waiver in Joseph did not fall into one of the categories that ordinarily give rise to an implied waiver because the contract did not “provide specifically for the adjudication of disputes in the United States [or] state that United States law would govern such actions.” Siderman de Blake, 965 F.2d at 721; see also Eckert Int’l, Inc. v. Gov’t of the Sovereign. Democratic Republic of Fiji, 32 F.3d 77, 78, 80-82 (4th Cir. 1994) (holding that a sovereign had waived its immunity where it was party to a consulting contract with a choice-of-law provision that explicitly stated “[i]n the event of any controversy, this Agreement shall be construed and interpreted according to the laws of the state of Virginia in the United States”).

The Understanding does not contain a choice-of-law provision. Rather than specifying with reasonable certainty .which country’s law should govern or the forum in which'suit may be brought, the Understanding discusses both a United Nations document—the Convention—and Indian laws, such as the Indian constitution and the Indian Penal Code. Moreover, the Understanding contemplates that the conduct at issue—the potential torture of Bara-pind—would occur in India. At best, the Understanding is ambiguous regarding choice of law. Thus, Barapind has not demonstrated that the Indian government, by and through the' Understanding, has agreed that the law of a particular country should govern a contract. See In re Republic of Philippines, 309 F.3d at 1151 (quoting Joseph, 830 F.2d at 1022).

Second, Barapind has not met his burden of proving that the Indian government contemplated the involvement of the courts of the United States. See Siderman de Blake, 965 F.2d at 721-22. For example, India’s assurances never explicitly discuss an intent to be bound by United States law, such as-FARRA. Whereas the United States’s communications to India cited 22 C.F.R § 95.2 and mentioned the United States’s obligations under FARRA to not extradite persons if it is “more likely than not” they will be tortured, India’s communications discuss only India’s obligations not to torture Barapind under the Convention, an international document, as well as Indian laws. It is clear that the Understanding’s reference to the Convention is not itself a reference to United States law because the Convention is not self-executing and by itself does not have the status of law within the United States. And, the present case is unlike our decision in Joseph, where we considered a lease agreement between Nigeria and a landlord in California that provided for “adjudication of landlord-tenant disputes in court.” 830 F.2d at 1023. We noted that “[i]n light of the wholly local nature of the transaction, it is virtually inconceivable that the Consulate contemplated that adjudication of disputes would occur in a court outside of the United States[,]” but nevertheless declined to rely solely on this implied waiver of Nigeria’s sovereign immunity. Id. at 1023 & n.6. Here, we do not believe it reasonable to assume India intended to be bound by a law of the United States or contemplated that adjudication of disputes would occur in a court of the United States because the entirety of the conduct at issue—the potential torture of Barapind— was reasonably contemplated to occur only in India.

The Understanding, moreover, does not show an intent by the Indian government to avail itself of the privileges or protections of the courts of the United States. For instance, in Siderman de Blake, we held that 'Argentina impliedly waived its immunity when it engaged United States courts by filing a letter rogatory in a court of the United States, thereby creating a “direct connection between the sovereign’s activities in our courts and the plaintiffs claims for relief.” 965 F.2d at 721; see also Smith v. Socialist People’s Libyan Arab Jamahiriya, 101 F.3d 239, 246 (2d Cir. 1996) (requiring for implied waiver a “close relationship” between a written agreement and United States litigation); Unlike in Siderman de Blake, the Indian government did not directly file documents in a court of the United States for the purposes of effecting Barapind’s extradition. Instead, the Indian government used diplomatic channels to request Barapind’s extradition from the United States, and the United States government “filed a complaint on India’s behalf’ in district court, seeking a certificate of ex-traditability. See Barapind, 400 F.3d at 747. This use of diplomatic channels does not, on its own, create the necessary relationship between the Indian government and our courts. See Blaxland v. Commonwealth Dir. of Pub. Prosecutions, 323 F.3d 1198, 1206 (9th Cir. 2003) (holding that Australia-had not impliedly waived its immunity when it used diplomatic channels to effect extradition).

Because the Understanding does not expressly or implicitly indicate that India contemplated adjudication of disputes by the United States courts, Barapind’s argument that claims under the Convention and the Torture Victim Protection Act (“TVPA”) could be adjudicated in United States courts is inapposite. See Amerada Hess Shipping Corp., 488 U.S. at 442-43, 109 S.Ct. 683 (concluding that Argentina had not waived its immunity, explicitly or implicitly, “by signing an international agreement that contains no mention of a waiver of immunity to suit in United States courts or even the availability of a cause of action in the United States”). Regardless of whether parties can adjudicate Convention and TVPA claims in federal court, the Understanding does not indicate that India intended to adjudicate such disputes in this country, and therefore India did not implicitly waive its sovereign immunity on this ground.

But even if we consider Barapind’s arguments that his alleged Convention and TVPA claims are cognizable in federal court, we would conclude that he is mistaken. Article 14 of the Convention does not create a private right of action in the United States for damages by victims of torture occurring outside of the United States. The Senate conditioned ratification on its understanding that Article 14 “requires a State Party to provide a private right of action for damages only for acts of torture committed in territory under the jurisdiction of that State Party.” 136 Cong. Rec. S1748-601, S17492 (daily ed. Oct. 27, 1990) (emphasis added). Barapind alleges that the torture occurred in India. Therefore, even if a cause of action for damages existed under the Convention, Barapind has been unable to identify a source of United States law that creates a similar action for torture alleged to have been committed in a foreign country.

Barapind’s argument that the TVPA creates a cause of action also fails. The Supreme Court has interpreted the word “individual” in the TVPA as “author-iz[ing] liability solely against natural persons.” Mohamad v. Palestinian Auth., 566 U.S. 449, 132 S.Ct. 1702, 1708, 182 L.Ed.2d 720 (2012). The Indian government is not a “natural person” and is, therefore, not subject to suit under the TVPA.

CONCLUSION

For all of these reasons, Barapind has not supplied sufficient evidence on which we would find it appropriate to reverse the district court’s dismissal for lack of jurisdiction based on India’s sovereign immunity. The district court’s order dismissing for lack of subject matter jurisdiction is

AFFIRMED.

      . In assessing the extradition request, the district court considered this treaty, one between the United States and Great Britain, as it was the applicable treaty at the time of India’s request. In re Extradition of Singh, 170 F.Supp.2d 982, 986 (E.D.C.A. 2001).

        . Barapind does not argue that the Indian government explicitly waived its sovereign immunity nor does the evidence support such an explicit waiver. See Aguamar S.A. v. Del Monte Fresh Produce N.A., Inc., 179 F.3d 1279, 1292 (11th Cir. 1999) ("An express waiver ... must give a 'clear, complete, unambiguous, and unmistakable manifestation’ of the sovereign’s intent to waive its immunity.”); see also H.R. Rep. No. 1487, 94th Cong., 2d Sess. 18 (1976), reprinted in 1976 U.S.C.C.A.N. 6604, 6617 ("With respect to explicit waivers, a foreign state may renounce its immunity by treaty, ... [or] in a contract with a private party.”).

      . After oral argument, Barapind filed a letter pursuant to Federal Rule of Appellate Procedure 28(j), in which he argued that Article 14 of the Convention provides a right to monetary damages. Appellant’s Citation to Suppl. Authorities 1, ECF No. 35. Barapind, however, has not pointed to a source of United States law that expressly implements Article 14. Whether prior laws may provide the same relief in the United States and thereby fulfill international commitments does not aid Bara-pind’s reliance on the Convention as the source of United States law.


source: Caselaw Access Project

author: THOMAS, Chief Judge:

license: Public Domain

text:
    David RAINERO, Plaintiff-Appellant, v. ARCHON CORPORATION, Defendant-Appellee.
    No. 14-17106
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted October 17, 2016 San Francisco, California
    Filed December 21, 2016

      Joseph N. Mott (argued) and Steven J. Parsons, Law Offices of Steven J. Parsons, Las Vegas, Nevada; Steven E. Goren, Goren Goren & Harris P.C., Bingham Farms, Michigan; for Plaintiff-Appellant.
    John Desmond (argued) and Justin J. Bustos, Gordon Silver, Reno, Nevada, for Defendant-Appellee.
    Before: SIDNEY R. THOMAS, Chief Judge, and CARLOS T. BEA and SANDRA S. IKUTA, Circuit Judges.
   OPINION

THOMAS, Chief Judge:

This appeal presents the question, inter alia, of whether the Securities Litigation Uniform Standards Act, 112 Stat. 3227, provides an independent basis for federal question jurisdiction under 28 U.S.C. § 1331. We cpnclude that it does not, and affirm thé district court’s dismissal of this class "action suit for lack of subject matter jurisdiction.

I

On August 20, 1993, Archon Corporation (“Archon”), a Nevada corporation with its principal place of business in Las Vegas, created a class of equity securities designated as Exchangeable Redeemable Preferred Stock (“preferred stock”). After filing a Certificate of Designation (“Certificate”) with the Nevada Secretary of State, Archon issued shares of the preferred stock. The Certificate reserved Ar-chon’s right to redeem the preferred stock, in whole or in part, at Archon’s election and upon providing notice to the shareholders. Upon redemption, shareholders would be entitled to $2.14 per share in addition to accrued, unpaid dividends. According to the terms of the Certificate, dividends would “cease to accrue on the shares redeemed ... provided that the redemption price ... has been duly paid or provided for.”

On July 31, 2007, Archon issued a Notice of Redemption (“Notice”) to the holders of outstanding" shares of preferred stock, announcing its intent to redeem all outstanding shares of the preferred stock on August 31, 2007. The Notice also announced that the preferred stock’s redemption price would be $5.241 per share. Rainero, a resident of Pennsylvania, claims that he held 9,140 shares of preferred stock at the time of redemption.

, On November 20, 2007, Rainero filed a complaint in the U.S.- District Court for the District of Nevada, alleging breach of contract. He argued' that, under the terms of .the Certificate, the redemption price should have been $8.69 per share; therefore, he and other shareholders were entitled to an additional $3.45 per share. He brought the suit on behalf of himself and other holders of outstanding preferred stock at the time of redemption. According to Rainero’s complaint, the class, members held a total of 1,483,270 outstanding shares of preferred stock at the time of redemption. The sole basis for federal subject matter jurisdiction alleged in the complaint is 28 U.S.C. § 1332(d)(2), which confers federal subject matter jurisdiction over certain class action lawsuits.

Shortly before Rainero filed his complaint, the investment group D.E. Shaw Laminar Portfolios, LLC (“D.E. Shaw”) filed a similar complaint against Archon. D.E. Shaw v. Laminar Portfolios, LLC v. Archon Corp., 755 F.Supp.2d 1122 (D. Nev. 2010). After Rainero filed his complaint, the investment group Leeward Capital filed its own complaint against Archon. Leeward Capital, L.P. v. Archon Corp., 759 F.Supp.2d 1249 (D. Nev. 2010).. The three cases were consolidated only for the purpose of discovery; discovery in D.E. Shaw was to govern all three cases. On December 22, 2010, the district court held in D.E. Shaw and Leeward that the properly calculated redemption price was $8.69 and that Archon owed the shareholders of preferred stock an additional $3,449 per share. D.E. Shaw, 755 F.Supp.2d at 1128; Leeward, 759 F.Supp.2d at 1257. This Court subsequently affirmed the district court’s decision in a consolidated appeal. D.E. Shaw Laminar Portfolios, LLC v. Archon Corp., 483 Fed.Appx. 358 (9th Cir. 2012) (unpublished).

In light of the decisions in D.E. Shaw and Leeward, Rainero sought partial summary judgment as to the method for calculating the redemption price. The district court granted Rainero’s motion on November 7, 2013. On January 21, 2014, Archon filed a motion to dismiss for lack of subject matter jurisdiction because the class members’ claims did not reach the $5 million amount in controversy required by 28 U.S.C. § 1332(d)(2). Archon argued in its motion to dismiss that the class held only 1,439,270 shares of preferred stock, and therefore the amount in controversy is only $4,964,042.23. Without ruling on Ar-chon’s motion, the district court entered a minute order on September 11, 2014, requiring Rainero to show cause why the action should not be dismissed for lack of subject matter jurisdiction pursuant to 28 U.S.C. § 1332(d)(9), which excludes certain class actions from § 1332(d)(2)’s grant of subject matter jurisdiction. Both parties submitted briefs addressing the issue of subject matter jurisdiction. In addition, Rainero filed a motion for leave to amend his original complaint and submitted a proposed first amended complaint. Whereas Rainero’s original complaint relies solely on class action diversity jurisdiction under 28 U.S.C. § 1332(d)(2), his proposed first amended complaint also asserts federal question jurisdiction under 28 U.S.C. § 1331 and 15 U.S.C. § 77p, individual diversity jurisdiction under 28 U.S.C. § 1332(a), and supplemental jurisdiction over the class members’ claims under 28 U.S.C. § 1367. The district court subsequently dismissed the case, without prejudice, for lack of subject matter jurisdiction. Rainero timely appealed. We review de novo a district court’s dismissal of a .complaint for lack of subject matter jurisdiction. Young v. United States, 769 F.3d 1047, 1052 (9th Cir. 2014).

II

The district court properly held that it lacked federal question subject matter jurisdiction. Under 28 U.S.C. § 1331, “[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” “The presence or absence of federal question jurisdiction is governed by the Veil-pleaded complaint rule,’ which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiffs properly pleaded complaint.” California ex rel. Sacramento Metro. Air Quality Mgmt. Dist. v. United States, 215 F.3d 1005, 1014 (9th Cir. 2000) (citation omitted). The sole claim in Rainero’s complaint was a breach-of-contract claim arising under Nevada law. Because Rainero did not assert a federal claim, the district court lacked subject matter jurisdiction under § 1331.

Rainero argues that the Securities Litigation Uniform Standards Act (“SLU-SA”), Pub. L. 105-353, 112 Stat. 3227 (codified in relevant part at 15 U.S.C. § 77p), provides a basis for the district court’s federal question jurisdiction under § 1331 because 15 NS.C. § 77p(d)(l)(A) is a federal statute that allows certain class actions, including this one, to be maintained in either state or federal court. Specifically, he asserts that this case is a “covered class action” under § 77p that is “based upon the statutory or common law of the state in which the issuer is incorporated;” 15 U.S.C. § 77p(d)(l)(A), and therefore the federal district court has jurisdiction over this case. Contrary to Rainero’s arguments, SLUSA does not create an independent basis for federal question jurisdiction. Although we have not had the occasion to review this issue, the D.C. Circuit addressed it in Campbell v. American International Group, Inc., 760 F.3d 62, 63 (D.C. Cir. 2014), and held that SLUSA “does not confer federal jurisdiction over ... state-law claims.” We agree with and adopt Campbell’s analysis of this issue.

“As with any question of statutory interpretation, [a court’s] analysis begins with the plain language of the statute.” Jimenez v. Quarterman, 555 U.S. 113, 118, 129 S.Ct. 681, 172 L.Ed.2d 475 (2009). “[W]hen deciding whether the language . is plain, [courts] must read the words % their context and with a view to their place in the overall statutory scheme.’ ” King v. Burwell, — U.S. —, 135 S.Ct. 2480, 2489, 192 L.Ed.2d 483 (2015) (citations omitted). If the statutory language is plain, we must enforce the statute according to its terms. Jimenez, 555 U.S. at 118, 129 S.Ct. 681.

As explained by the D.C. Circuit in Campbell, 760 F.3d at 64, the plain language of the provision shows that § 77p(a) simply preserves state law claims except as set forth in § 77p(b):

(a) Remedies additional
Except as provided in subsection (b), the rights and remedies provided by this subchapter shall be in addition to any and all other rights and remedies that may exist at law or in equity.
(b) Class action limitations
No covered class action based upon the statutory or common law of any State or subdivision thereof may be maintained in any State or Federal court by any private party alleging—
(1) an untrue statement or omission of a material fact in connection with the purchase or sale of a covered security; or
(2) that the defendant used or employed any manipulative or deceptive device or contrivance in connection with the purchase or sale of a covered security.

15 U.S.C. § 77p(a)-(b). Subsection 77p(b) is commonly referred to as the “preclusion provision” because it bars individuals from bringing certain state-law securities fraud claims as class actions in either state or federal court. See Campbell, 760 F.3d at 64. Then, § 77p(c) ensures that federal courts have jurisdiction for the limited purpose of determining whether a certain state action is precluded under § 77p(b):

(c) Removal of covered class actions
Any covered class action brought in any State court involving a covered security, as set forth in subsection (b), shall be removable to the Federal district court for the district in which the action is pending, and shall be subject to subsection (b).

15 U.S.C. § 77p(c); see Campbell, 760 F.3d at 64. In short, subsection (a) provides the general rule, subsection (b) creates an exception to the general rule, and subsection (c) gives' a limited grant of jurisdiction to render subsection (b) effective. See Campbell, 760 F.3d at 65.

Considering these three preceding subsections, as the D.C. Circuit noted in Campbell, it is evident that the plain language of § 77p(d) “‘carefully’ carves out exceptions to the preclusive reach of subsection (b)”:

(d) Preservation of certain actions
(1) Actions under State law of State of incorporation
(A) Actions preserved
Notwithstanding subsection (b) or (c), a covered class action described in subparagraph (B) of this paragraph that is based upon the statutory or common law of the State in which the issuer is incorporated (in the case of a corporation) or organized (in the case of any other entity) may be maintained in a State or Federal court by a private party.
(B) Permissible actions
A covered class action is described in this subparagraph if jt involves—
(i) the purchase or sale of securities by the issuer or an affiliate of the issuer exclusively from or to holders of equity securities of the issuer; or
(ii) any recommendation, position, or other communication with respect to the sale of securities of the issuer that—
(I) is made by or on behalf of the issuer or an affiliate of the issuer to holders of equity securities of the issuer; and
(II) concerns decisions of those equity holders with respect to voting their securities, acting in response to a tender or exchange offer, or exercising dissenters’ or appraisal rights.

15 U.S.C. §, 77p(d); Campbell, 760 F.3d at 65 (citing Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U.S. 71, 87, 126 S.Ct. 1503, 164 L.Ed.2d 179 (2006)). As the Campbell court stated, “[tjhere is no indication ... that Congress intended subsection (d)(1)(A) to go substantially further, so. as to create federal jurisdiction over a category of state-law securities class actions.” Campbell, 760 F.3d at 65 (emphasis in original). Indeed,. “the introductory clause of subsection (d)(1)(A)—‘Notwithstanding subsection (b) or (c)’—confirms that the provision responds to subsections (b) and (c). It does not embark on a wholly independent mission to confer federal-court jurisdiction on state-law actions.” Id,

In summary, the district court here correctly concluded -that it lacked federal question jurisdiction under § 1331 because Rainero did not assert a federal claim, and § 77p(d)(l)(A) does not provide an independent basis for federal question jurisdiction over Rainero’s state-law claim.

Ill

The district court also properly concluded that it lacked diversity jurisdiction over the class action suit under 28 U.S.C. § 1332(d)(2) because of the exception provided in 28 U.S.C. § 1332(d)(9)(C). Under § 1332(d)(2), a federal court may exercise diversity jurisdiction over a class that has more than 100 members who are minimally diverse and whose aggregated claims exceed $5 million. 28 U.S.C. § 1332(d)(2), (d)(5)(b); see also Standard Fire Ins. Co. v. Knowles, — U.S. -, 133 S.Ct. 1345, 1348, 185 L.Ed.2d 439 (2013). However, § 1332(d)(9)(C) bars the district court from exercising diversity jurisdiction under § 1332(d)(2) in this case. Subsection (d)(9)(C) provides that § 1332(d)(2) “shall not apply to any class action that solely involves a claim” that “relates to the rights, duties ,... and obligations relating to or created by or pursuant to any security.”

Rainero does not dispute that the preferred stock was the type of security covered by § 1332(d)(9)(C). Instead, he argues that, because the shares of preferred stock were redeemed, and thereby can-celled, on August 31, 2007, “the Archon preferred stock was no longer in existence” when Rainero filed his complaint on November 20, 2007. As a result, he argues, § 1332(d)(9)(C) does not apply.

However, the plain language' of § 1332(d)(9) does not require that the covered security be “in existence” at the time the complaint is filed. Rather, it applies to “any class action” solely raising claims relating to the rights, duties, and obligations “relating to or created by or pursuant to any security.” 28 U.S.C. § 1332(d)(9)(C); see also Greenwich Fin. Servs. Distressed Mortg. Fund 3 LLC v. Countrywide Fin. Corp., 603 F.3d 23, 29 (2d Cir. 2010) (holding that § 1332(d)(9)(C) “applies to suits that enforce ‘the terms of instruments that create and define securities’ ” (citation omitted)); Estate of Pew v. Cardarelli, 527 F.3d 25, 31-32 (2d Cir. 2008); Appert v. Morgan Stanley Dean Witter, Inc., 673 F.3d 609, 619-20 (7th Cir. 2012). See also Eminence Investors, LLLP v. Bank of N.Y. Mellon, 782 F.3d 504, 506, 507 (9th Cir. 2015) (adopting the Second Circuit’s analysis of 28 U.S.C. § 1332(d)(9) in Greenwich Fin. Servs. in interpreting the “virtually identical language” in 28 U.S.C. § 1453(d), which precludes CAFA removal for a claim that “relates to the rights, duties ... and obligations relating to or created by or pursuant to any security.”) Because Rainéro’s claim seeks to enforce the terms of the Certificate, which set forth the rights, duties, and obligations relating to the preferred stock, § 1332(d)(9)(C) divests the federal courts of jurisdiction under § 1332(d)(2).

IV

Finally, the district court properly held that it lacked diversity jurisdiction over Rainero’s individual claim under 28 U.S.C. § 1332(a) and therefore could not exercise § 1367 supplemental jurisdiction over the class members’ claims. Rainero did not allege individual diversity* jurisdiction in his original complaint, nor did he allege facts that would, if proven, establish diversity jurisdiction.

For a federal court to exercise diversity jurisdiction under § 1332(a), the amount in controversy must exceed $75,000, and the parties must be citizens of different states. See 28 U.S.C. § 1332(a). Rainero did not allege diverse citizenship; he alleged only that he was a resident of Pennsylvania, and that Archon had its principal place of business in Nevada. See Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001) (noting that “the diversity jurisdiction statute, 28 U.S.C. § 1332, speaks of citizenship, not of residency.”). Nor did he make any allegation as to the amount in controversy for his individual claim, or that his individual claim exceeds $75,000 as required by § 1332(a).

“The party seeking to invoke the district court’s diversity jurisdiction always bears the burden of both pleading and proving diversity jurisdiction.” New-Gen, LLC v. Safe Cig, LLC, 840 F.3d 606, 613-14 (9th Cir. 2016). When a plaintiff originally files in federal court, as Rainero did here, “‘the amount in controversy is determined from the face of the pleadings.’” Geographic Expeditions, Inc. v. Estate of Lhotka ex rel. Lhotka, 599 F.3d 1102, 1106 (9th Cir. 2010) (citation omitted). Therefore, “ ‘[t]he essential elements of diversity jurisdiction ... must be affirmatively alleged in the pleadings.’ ” Bautista v. Pan Am. World Airlines, Inc., 828 F.2d 546, 552 (9th Cir. 1987) (citation omitted). Given the lack of pleading as to diverse citizenship and amount in controversy, the original complaint plainly failed to allege all the “essential elements of diversity jurisdiction,” id. required under § 1332(a). Therefore, the district court correctly determined that it lacked diversity jurisdiction.

Rainero alleged in his proposed first amended complaint that the amount in controversy for his individual claim exceeded $75,000, without offering further explanation. However, in both his original complaint and the proposed first amended complaint, Rainero sought damages only for a difference in $3.45 per share. He conceded in discovery, and in briefing, that he owned 9,140 shares; therefore, his maximum individual damages would be $31,533. Thus, granting Rainero leave to file his proposed first amended complaint would have been futile in establishing individual diversity jurisdiction because the amount in controversy pleaded, by his own concession, did not exceed $75,000.

Rainero argues, in briefing, that he may be entitled to additional damages in excess of $75,000 in the form of post-August 31, 2007 dividends. However, Rainero did not make this claim in his original complaint; he alleged damages only in the amount of $3.45 per share. Rainero’s proposed amended complaint alleges the same amount of damages, and again contains no mention of this additional liability and damage theory. Accordingly, Rainero placed in controversy only a potential individual claim for $31,533, far below the requirement for individual diversity jurisdiction. Thus, his tendered amended complaint was facially deficient to establish federal jurisdiction, and the district court did not abuse its discretion in denying leave to file it.

In sum, Rainero’s original complaint did not even plead individual diversity jurisdiction, nor did it contain allegations that would be sufficient to create such jurisdiction. As a result, no diversity jurisdiction existed over his individual claim, and the district court could not exercise supplemental jurisdiction over the class members’ claims. The district court did not abuse its discretion in declining to grant Rainero’s motion for leave to amend his complaint. Metzler Inv. GMBH v. Corinthian Colls., Inc., 540 F.3d 1049, 1072 (9th Cir. 2008).

Granting leave to amend would have been futile because Rainero’s proposed amended complaint also failed to allege a sufficient amount in controversy, and the district court did not abuse its discretion by failing to afford Rainero yet another opportunity to cure the jurisdictional defect rather than dismissing the complaint without prejudice. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) (holding that futility and failure to cure justify denial of leave to amend).

V

We recognize that this litigation proceeded for several years before the district court dismissed it for lack of subject matter jurisdiction. If a court lacks subject matter jurisdiction, it is obligated to dismiss the case, regardless of how long the litigation has been ongoing. “[S]ubject-matter jurisdiction, because it involves a court’s power to hear a case, can never be forfeited or waived.” United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). Therefore, objections to subject matter jurisdiction may be raised at any time, “even by a party that once conceded the tribunal’s subject-matter jurisdiction over the controversy.” Sebelius v. Auburn Reg’l Med. Ctr,, — U.S. -, 133 S.Ct. 817, 824, 184 L.Ed.2d 627 (2013). This is true even though such an objection “may also result in the waste of judicial resources and may unfairly prejudice litigants.” Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011). If a court determines that it lacks subject matter jurisdiction, it is required to “dismiss the complaint in its entirety.” Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006).

The district court properly dismissed Rainero’s complaint for lack of jurisdiction. We need not, and we do not, reach any other issue urged by the parties.

AFFIRMED.

      . He also failed to plead diverse citizenship, but all parties concede that diversity of citizenship existed, so we need not reach that issue, although the proposed pleading on its face is plainly deficient.