DeJean et al v. Grosz et al

Filing 29

ORDER. The 7 Motion to Dismiss is denied without prejudice as premature. The defendants shall file a motion to dismiss based on lack of subject matter jurisdiction on or before January 31, 2014. By Magistrate Judge Boyd N. Boland on 1/14/14.(mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Boyd N. Boland
Civil Action No. 13-cv-02381-BNB-MJW
FELIX A. DEJEAN, III, and
CAROLYNE DEJEAN,
Plaintiffs,
v.
COLLEN A. GROSZ, as Trustee of the Declaration of Trust for Benefit of Colleen A. Grosz,
dated 8/11/1989,
TIMOTHY C. RODELL, an individual, and
MARJORIE M. RODELL, an individual,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter arises on the following:
(1)

Defendants’ Motion to Dismiss Pursuant to F.R.C.P. 12(b)(6) on the Grounds

of Res Judicata (Claim Preclusion) [Doc. # 7, filed 11/4/2013] (the “Motion to Dismiss); and
(2)

The defendants’ assertion in the Scheduling Order that the court lacks subject

matter jurisdiction due to an insufficient amount in controversy.
The issue of subject matter jurisdiction must be determined first, because any action
taken by the court while that issue remains undecided may be rendered a nullity by a finding of
no jurisdiction. Consequently, it is inefficient to determine the Motion to Dismiss while subject
matter jurisdiction is pending. I discussed the matter with counsel this afternoon during the
scheduling conference, and defendants’ counsel indicated the ability to file a motion to dismiss
based on lack of jurisdiction by January 31, 2014.

IT IS ORDERED:
(1)

The Motion to Dismiss [Doc. # 7] is DENIED without prejudice as premature;

(2)

The defendants shall file a motion to dismiss based on lack of subject matter

and

jurisdiction on or before January 31, 2014.
DATED January 14, 2014.
BY THE COURT:

s/ Boyd N. Boland
United States Magistrate Judge

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