Dean v. Marker Volkl USA Inc. et al
ORDER granting 44 Defendant's Motion to Dismiss and dismissing 39 Plaintiff's Amended Complaint. Entered by Judge Raymond P. Moore on 10/7/2015. (cpear)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 15-cv-00190-RM-MEH
MARKER VOLKL USA INC.,
LEONARD GREEN & PARTNERS, d/b/a SPORTS AUTHORITY, INC.,
MARKER DEUTSCHLAND GMBH,
TSA STORES INC., d/b/a SPORTS AUTHORITY, and
This matter is before the Court on Defendants Marker Volkl USA, Inc., Jarden
Corporation Leonard Green & Partners, d/b/a Sports Authority, Inc., TSA Stores, Inc., d/b/a
Sports Authority, and John Doe’s (collectively “Defendants”) motion to dismiss (ECF No. 44)
Plaintiff Alex Dean’s Amended Complaint (ECF No. 39). Defendants move to dismiss the
Amended Complaint based upon the Court’s lack of subject-matter jurisdiction due to the
absence of complete diversity between the parties. (ECF No. 44 at 3.)
For the following reasons, the Court GRANTS Defendants’ motion to dismiss (ECF No.
Plaintiff brings state law claims against Defendants based upon alleged diversity
jurisdiction. (ECF No. 39 ¶¶ 9, 17-54.)
Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a motion to dismiss for lack
of subject matter jurisdiction may be brought in two forms: “facial” or “factual.” Holt v. United
States, 46 F.3d 1000, 1002 (10th Cir. 1995). A “facial attack” as to subject matter jurisdiction
challenges the sufficiency of the complaint and in reviewing such a challenge, the Court must
accept the allegations in the complaint as true. Id. A “factual attack” as to subject matter
jurisdiction challenges the facts upon which subject matter jurisdiction depends and in reviewing
such a challenge, the Court has discretion to consider documents outside the complaint. Id. at
1003. If undertaking a review of subject matter jurisdiction predicated upon a factual attack of
the complaint, “a court’s reference to evidence outside the pleadings does not convert the motion
to a Rule 56 motion.” Id.
Regardless of the type of challenge to subject matter jurisdiction, the plaintiff retains the
burden of establishing subject matter jurisdiction. Port City Props. v. Union Pac. R.R. Co., 518
F.3d 1186, 1189 (10th Cir. 2008) (citation omitted).
Pursuant to 28 U.S.C. § 1332(a)(1), “[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.”
Because Defendants’ motion to dismiss is a “factual attack” (ECF Nos. 44 at 3; 44-1 at 1,
Stephens Decl. ¶¶ 1-3), the Court may consider “other documents” to resolve disputed
jurisdictional facts. Holt, 46 F.3d at 1003 (citing Wheeler v. Hurdman, 825 F.2d 257, 259 n.5
(10th Cir. 1987)); Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990)
(citation omitted). Defendants submitted the declaration of TSA Stores, Inc.’s Risk Manager,
Jay Stephens, who has personal knowledge that TSA Stores, Inc.’s corporate offices and
headquarters are located in Colorado. (ECF No. 44-1 at 1, Stephens Decl. ¶¶ 1-2.) TSA Store
Inc.’s corporate headquarters serve as the location from which the direction, control, and
coordination of TSA Stores, Inc.’s operations come. (ECF No. 44-1 at 1, Stephens Decl. ¶ 3.)
Under 28 U.S.C. § 1332(c)(1), in pertinent part, “a corporation shall be deemed to be a
citizen of every State and foreign state by which it has been incorporated and of the State or
foreign state where it has its principal place of business. . . .” The United States Supreme Court
has concluded that
‘principal place of business’ is best read as referring to the place where a
corporation’s officers direct, control, and coordinate the corporation’s activities . .
. [a]nd in practice it should normally be the place where the corporation maintains
its headquarters—provided that the headquarters is the actual center of direction,
control and coordination, i.e., the ‘nerve center,’ and not simply an office where
the corporation holds its board meetings. . . .
Hertz Corp. v. Friend, 559 U.S. 77, 92-93 (2010). The Court finds that TSA Stores, Inc.’s is a
citizen of Colorado as its principal place of business is in Colorado.
Plaintiff is a citizen of Colorado. (ECF No. 39 ¶ 1.) Thus, TSA Stores, Inc. and Plaintiff
are citizens of the same state.
“A case falls within the federal court’s ‘original’ diversity ‘jurisdiction’ . . . only if there
is no plaintiff and no defendant who are citizens of the same State.” Gadlin v. Sybron Int’l
Corp., 222 F.3d 797, 799 (10th Cir. 2000) (internal quotation and citations omitted); accord
Ravenswood Inv. Co., L.P. v. Avalon Corr. Servs., 651 F.3d 1219, 1223 (10th Cir. 2011). The
Court lacks diversity jurisdiction.
Because the Court lacks subject-matter jurisdiction, dismissal of this matter is without
prejudice. See Steel Co. v. Citizens for a Better Env’t., 523 U.S 83, 94-95 (1998); see Olsen v.
Aebersold, 71 F. App’x 7, 10 (10th Cir. 2003) (unpublished).
Based on the foregoing, the Court:
GRANTS Defendants’ motion to dismiss (ECF No. 44); and
DISMISSES WITHOUT PREJUDICE Plaintiff’s Amended Complaint (ECF No.
DATED this 7th day of October, 2015.
BY THE COURT:
RAYMOND P. MOORE
United States District Judge
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