Diaz Rodriguez et al v. Luna et al

Filing 67

ORDER adopting 62 Report and Recommendations. Denying 21 Motion to Dismiss, denying 21 Motion to Dismiss for Failure to State a Claim, denying 34 Motion for Partial Summary Judgment, denying 36 Motion for Summary Judgment. This case is closed, by Judge Robert E. Blackburn on 8/20/2014.(trlee, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 13-cv-02223-REB-KMT
NANCY DIAZ RODRIGUEZ, and
JAVIER PIMENTEL,
Plaintiffs,
v.
JOHN LUNA,
LETICIA JAEL RODRIGUEZ CISNEROS, and
AZTECA RANCH MARKET #3, INC.,
Defendants.

ORDER ADOPTING RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
The matter before me is the Recommendation of United States Magistrate
Judge [#62],1 filed July 29, 2014. No objections having been filed to the
recommendation, I review it only for plain error. See Morales-Fernandez v.
Immigration & Naturalization Service, 418 F.3d 1116, 1122 (10th Cir. 2005).
Finding no error, much less plain error, in the magistrate judge’s recommended
disposition, I find and conclude that recommendation should be approved and adopted.
Federal diversity jurisdiction exists only as between “adverse parties [who] are not
co-citizens.” Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 579, 124
S.Ct. 1920, 1929, 158 L.Ed.2d 866 (2004) (citation and internal quotation marks
1

“[#62]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.

omitted). Because both plaintiffs and at least one defendant are aliens of the same
country of origin, federal diversity jurisdiction is absent. Id., 124 S.Ct. at 1923. See
also Allendale Mutual Insurance Co. v. Bull Data Systems, Inc., 10 F.3d 425, 428
(7th Cir. 1993) (noting that “[28 U.S.C. § 1332](a)(2), when read in light of [28 U.S.C. §
1332](a)(3), does not permit a suit between foreigners and a mixture of citizens and
foreigners”). In addition, the Tenth Circuit, although finding the conclusion “far from
apparent” from the face of the federal diversity statute, has acknowledged the general
view of the federal courts that Ҥ 1332(a)(2) [] require[s] United States citizens on both
sides of an action between foreign citizens.” Gschwind v. Cessna Aircraft Co., 232
F.3d 1342, 1345 (10th Cir. 2000), cert. denied, 121 S.Ct. 2520 (2001). This condition
also is not satisfied in this case. The case therefore must be dismissed for lack of
federal jurisdiction.
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of United States Magistrate Judge [#62], filed
July 29, 2014, is APPROVED AND ADOPTED as an order of this court;
2. That plaintiffs’ claims are DISMISSED WITHOUT PREJUDICE for lack of
federal subject matter jurisdiction;
3. That all currently pending motions, including but not limited to (a) defendants’
Motion To Dismiss Claims Asserted in Plaintiffs’ First Amended Complaint [Doc.
#12] [#21], filed November 18, 2013; (b) plaintiffs’ Motion For Partial Summary
Judgment Regarding Piercing the Corporate Veil [#34], filed May 29, 2014; and (c)
Defendants John Luna’s and Leticia Jael Rodriguez Cisneros’ [sic] Motion For

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Summary Judgment and Memorandum Brief in Support Thereof on All Claims
Asserted in Plaintiffs’ First Amended Complaint [Doc. #12] [#36], filed June 2, 2104,
are DENIED WITHOUT PREJUDICE;
4. That the combined Final Pretrial Conference and Trial Preparation
Conference, set Friday, August 22, 2014, at 2:30 p.m., and the jury trial set to
commence Monday, August 25, 2014, are VACATED; and
5. That this case is CLOSED.
Dated August 20, 2014, at Denver, Colorado.
BY THE COURT:

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