King v. Wollner et al
Filing
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ORDER OF REMAND. Due to this Court's lack of subject-matter jurisdiction, this case is remanded to the District Court for Boulder County, Colorado, where it was originally filed as Case No. 2011cv1117. By Judge Philip A. Brimmer on 10/31/11. (mnfsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 11-cv-02828-PAB
GRAHAM KING,
Plaintiff,
v.
RON WOLLNER,
COMPUTER DATA SOURCE, INC., a New Jersey corporation, and
MICHAEL SINGLETON,
Defendants.
ORDER OF REMAND
This matter comes before the Court sua sponte on defendants’ Notice of
Removal [Docket No. 1]. Defendants claim that the Court has jurisdiction over the case
based on diversity of citizenship pursuant 28 U.S.C. § 1332(a). See Docket No. 1 at 2,
¶ 7. The Court finds that the notice of removal is deficient regarding the amount in
controversy and, therefore, will remand.
In every case and at every stage of a proceeding, a federal court must satisfy
itself as to its own jurisdiction, even if doing so requires sua sponte action. Citizens
Concerned for Separation of Church & State v. City & County of Denver, 628 F.2d
1289, 1297, 1301 (10th Cir. 1980). Generally, a party may remove “any civil action
brought in a State court of which the district courts of the United States have original
jurisdiction.” 28 U.S.C. § 1441(a) (2006). Relevant to the present case, “[t]he district
courts shall have original jurisdiction of all civil actions 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. 1332(a) (2006).
It is well established that “[t]he party invoking federal jurisdiction bears the
burden of establishing such jurisdiction as a threshold matter.” Radil v. Sanborn W.
Camps, Inc., 384 F.3d 1220, 1224 (10th Cir. 2004). Therefore, when a defendant
removes a case from state court asserting the existence of diversity jurisdiction, the
removing defendant has the burden of establishing that the jurisdictional prerequisites
of § 1332 have been satisfied. Martin v. Franklin Capital Corp., 251 F.3d 1284, 1290
(10th Cir. 2001). Where uncertainties exist regarding the Court’s jurisdiction, those
uncertainties are resolved in favor of remand. Martin, 251 F.3d at 1290; see also
Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir. 1995) (“[T]here is a presumption
against removal jurisdiction.”).
If at any time, “a federal court determines that it is without subject matter
jurisdiction, the court is powerless to continue.” Cunningham v. BHP Petroleum Great
Britain PLC, 427 F.3d 1238, 1245 (10th Cir. 2005). Where a case has been removed
from state court and a court determines any time prior to final judgment that jurisdiction
is lacking, 28 U.S.C. § 1447(c) mandates that the case be remanded to state court.
See McPhail v. Deere & Co., 529 F.3d 947, 951 (10th Cir. 2008).
“Both the requisite amount in controversy and the existence of diversity must be
affirmatively established on the face of either the petition or the removal notice.”
Laughlin, 50 F.3d at 873. “The amount in controversy is ordinarily determined by the
allegations of the complaint, or, where they are not dispositive, by the allegations in the
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notice of removal.” Martin, 251 F.3d at 1290 (quoting Laughlin, 50 F.3d at 873). When
the plaintiff’s damages are unspecified, the defendant must establish the jurisdictional
amount by at least a preponderance of the evidence. Martin, 251 F.3d at 1290.
Here, the complaint alleges that, as of September 23, 2011, plaintiff was entitled
to $42,132.95 of unpaid wages as of the time of his termination by defendant Computer
Data Source, Inc. (“CDS”). Plaintiff also seeks a statutory penalty pursuant to Colo.
Rev. Stat. § 8-4-109.1 When the maximum applicable penalty is added to $42,132.95,
the amount in controversy could potentially exceed $75,000.00. See Colo. Rev. Stat.
§ 8-4-109(3)(b) & (c). However, plaintiff also alleges that CDS has since paid him a
“part of the demanded payment.” Docket No. 2 at 3, ¶ 26. Therefore, the complaint
does not establish the requisite amount in controversy, as it is far from clear whether
CDS’s partial payment has reduced the amount in controversy to or below $75,000.00.
Moreover, in the face of this uncertainty, defendants neither supply a calculation of the
damages plus statutory penalty nor offer any additional evidence in an attempt to
“affirmatively establish[]” the amount in controversy. Laughlin, 50 F.3d at 873.2
1
Pursuant to Colo. Rev. Stat. § 8-4-109, an employer who fails to promptly tender
unpaid wages to a terminated employee “shall be liable to the employee for the wages
or compensation, and a penalty of . . . [o]ne hundred twenty-five percent of that amount
of such wages or compensation up to and including seven thousand five hundred
dollars; and . . . [f]ifty percent of that amount of such wages or compensation that
exceed seven thousand five hundred dollars.” Colo. Rev. Stat. § 8-4-109(3)(b).
Furthermore, “[i]f the employee can show that the employer’s failure to pay is willful, the
penalty required under paragraph (b) of this subsection (3) shall increase by fifty
percent.” Colo. Rev. Stat. § 8-4-109(3)(c); cf. Docket No. 2 at 4, ¶ 29 (alleging that
“CDS’s failure to pay [plaintiff] his earned compensation is willful”).
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Plaintiff also seeks its attorney’s fees and costs, but defendants have not
estimated the potential amounts or provided any basis to calculate them. Cf.
Dudley–Barton v.. Service Corp. Int’l., No. 10-cv-03091-CMA-KLM, 2011 WL 1321955,
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Therefore, this matter must be remanded to state court. See Holladay v. Kone, Inc.,
606 F. Supp.2d 1296, 1298 (D. Colo. 2009) (“‘[T]here is a presumption against removal
jurisdiction,’ so that all doubts are resolved in favor of remand.”) (quoting Laughlin v.
Kmart Corp., 50 F.3d 871, 873 (10th Cir. 1995), and citing Martin v. Franklin Capital
Corp., 251 F.3d 1284, 1289 (10th Cir. 2001); Fajen v. Foundation Reserve Ins. Co., 683
F.2d 331, 333 (10th Cir. 1982)).3
For the foregoing reasons, it is
ORDERED that, due to this Court’s lack of subject-matter jurisdiction, this case is
REMANDED to the District Court for Boulder County, Colorado, where it was originally
filed as Case No. 2011cv1117.
DATED October 31, 2011.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
at *3 (D. Colo. Apr. 5, 2011) (“This Court cannot be left to speculate as to potential
damages, fees, or costs when no evidence is before it.”).
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As a final note, defendants allege that the “individual defendants, Ron Wollner
and Michael Singleton, are both residents of the state of New Jersey.” Docket No. 1 at
2, ¶ 7.a. A natural person is a citizen of the state in which he or she is domiciled, not
necessarily where he or she resides. See Smith v. Cummings, 445 F.3d 1254, 1259
(10th Cir. 2006). “To establish domicile in a particular state, a person must be
physically present in the state and intend to remain there.” Id. at 1260. Defendants’
allegations regarding the citizenship of the natural person defendants are therefore also
insufficient.
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