Kelly et al v. Marusarz

Filing 5

ORDER REMANDING CASE to the District Court for the City and County of Denver, Colorado, where it was originally filed, by Judge John L. Kane on 11/30/2011. (ervsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-3104-JLK
SHARON KELLY, and
COLIN D. WRIGHT,
Plaintiffs,
v.
ALEX MARUSARZ,
Defendant.
_____________________________________________________________________
ORDER REMANDING CASE TO STATE COURT
_____________________________________________________________________
Kane, J.
This ski-injury negligence action is REMANDED to the District Court for the City
and County of Denver, Colorado based on the failure of Defendant’s Notice of Removal
(Doc. 1) to establish federal diversity jurisdiction. The Notice of Removal relies solely
on the Colorado state Civil Case Cover Sheet to establish the $75,000 jurisdictional
prerequisite amount in controversy, and it is settled law in this district that Colorado’s
state Civil Cover Sheet is not a sufficient “other paper” or document to establish the
amount in controversy by a preponderance of the evidence for purposes of diversity
jurisdiction under 28 U.S.C. § 1332. See Harding v. Sentinel Inc. Co., Ltd., 490 F.
Supp.2d 1134 (D. Colo. 2007)(Kane, J.)(rejecting earlier exceptions as contrary to Tenth
Circuit law); Baker v. Sears Holding Corp., 557 F. Supp.2d 1208, 1215 (D. Colo.

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2007)(agreeing with and expanding upon Harding).
To be removable, a civil action must satisfy the requirements for federal
jurisdiction. 28 U.S.C. § 1441(a). Federal jurisdiction in the instant removal action is
premised on diversity of citizenship under 28 U.S.C. § 1332. In this circuit, Courts are
“rigorously [to] enforce Congress’ intent to restrict federal jurisdiction in controversies
between citizens of different states.” Martin v. Franklin Capital Corp., 251 F.3d 1284,
1289 (10th Cir. 2001) (quoting Miera v. Dairyland Ins. Co., 143 F.3d 1337, 1339 (10th
Cir. 1998)). “[T]here is a presumption against removal jurisdiction,” Laughlin v. Kmart
Corp., 50 F.3d 871, 873 (10th Cir. 1995), see Franklin, 251 F.3d at 1289, so that all
doubts are resolved in favor of remand. Fajen v. Foundation Reserve Ins. Co., 683 F.2d
331, 333 (10th Cir. 1982).
In a removal case, the removing defendant has the burden of establishing that the
jurisdictional prerequisites of § 1332, specifically including the amount in controversy
requirement, have been satisfied. Franklin, 251 F.3d at 1290. Where, as here, a
plaintiff’s damages are unspecified in the complaint, defendant must establish the
jurisdictional amount by a preponderance of the evidence. Id. Under the law as set forth
in Harding and Baker, Plaintiffs’ checking off the C.R.C.P. Rule 16.1 box on the Civil
Cover Sheet provides no factual or evidentiary basis on which to establish the fact of this
jurisdictional amount.
Unless and until facts asserted or admitted in pleadings, depositions, affidavits,
discovery responses or “other papers” raise an inference that $75,000 is at issue in a
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diversity case case, removal is improvident. The case is remanded to the District Court
for the City and County of Denver, Colorado, where it was originally filed.

Dated December 1, 2011.

s/John L. Kane
SENIOR U.S. DISTRICT JUDGE

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