Saucedo et al v. Martinez et al
ORDER by Magistrate Judge Nina Y. Wang on 2/8/18 DENYING as moot 20 Motion to Change Venue; DENYING as moot 23 Motion to Remand; and DENYING as moot 24 Motion to Remand. The Court orders this action is REMANDED to the District Court for Weld County. (nmarb, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 18-cv-00080-NYW
SAUCEDO OIL FIELD SERVICE, INC.,
ORDER TO REMAND
Magistrate Judge Nina Y. Wang
This matter is before the court on Defendants Juana Martinez and Pablo Vazquez’s
(collectively, “Defendants”) Response to Order to Show Cause. [#19]. Also before the court is
Defendants’ Motion to Change Venue [#20] and Plaintiffs’ Motions to Remand [#23, #24]. The
court acts pursuant to authority granted by 28 U.S.C. 636(c) and the Order of Reference dated
February 8, 2018. [#26]. For the reasons stated below, IT IS ORDERED that this civil action is
REMANDED to Weld County District Court.
Plaintiffs commenced this action against Defendants in Weld County District Court on
August 28, 2017. See [#12-2]. Defendants filed a motion to dismiss on November 6, 2017;
Plaintiffs requested and received an extension of time to respond and filed a First Amended
Complaint on December 7, 2017. [#12-8].
On January 11, 2018, Defendants removed the action to the United States District Court
for the District of Colorado, invoking diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). See
Defendant’s Notice of Removal states that Plaintiffs served them with process on
September 8, 2017. [Id. at 2]. Defendants contend that “Plaintiff’s First Amended Complaint is
the first operative pleading asserting any facts which provide a basis for removal.” [Id. at 3].
Section 1446 of Title 28 of the United States Code requires a defendant removing a civil
action from state court to file the appropriate notice “within 30 days after the receipt by the
defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim
for relief upon which such action or proceeding is based.” 28 U.S.C. § 1446(b)(1). Because it
was not clear from the Notice of Removal that Defendants removed the action from state court
within 30 days from receipt of a pleading indicating that jurisdiction exists under 28 U.S.C. §
1332, the court issued an Order to Show Cause as to why the case should not be remanded to
state court. See [#13]. Defendants timely responded on February 1, 2018. [#19].
Defendants essentially reassert the contentions stated in the Notice of Removal.
Compare [#1] with [#19]. Specifically, Defendants contend that the original Complaint did not
put them on notice of diversity jurisdiction because “counsel found that Plaintiffs had failed to
plead any facts which would confer jurisdiction over the parties or controversy,” and that
“[w]ithout proper jurisdiction in Colorado courts, Defendants were not able to ascertain whether
this case would removable.” [#19 at 1-2]. Defendants concede that the Complaint establishes
diversity jurisdiction, but state that they “are not residents of the State of Colorado, do not have
the minimum contacts necessary to confer jurisdiction, nor have they purposefully availed
themselves of the protections of the State of Colorado.” [Id. at 4].
The issue of personal jurisdiction is distinct and separate from the issue of subject matter
Personal jurisdiction concerns the parties and whether the court can exercise
jurisdiction over a party. In Colorado, a court may exercise jurisdiction over a defendant if that
party enjoys “minimum contacts” with the state, such that having to defend a lawsuit here would
not “offend traditional notions of fair play and substantial justice.” Dudnikov v. Chalk &
Vermilion Fine Arts, Inc., 514 F.3d 1063, 1070 (10th Cir. 2008). By contrast, subject matter
jurisdiction pertains to whether federal courts have authority to adjudicate a civil action. Federal
courts have original jurisdiction over all civil actions arising under the Constitution, laws, or
treaties of the United States, 28 U.S.C. § 1331, and, for the purposes of this case, over civil
actions where the matter in controversy exceeds the sum or value of $75,000 and is between
citizens of different states. 28 U.S.C. § 1332(a). Unlike subject matter jurisdiction, “personal
jurisdiction is intended to protect a defendant’s liberty interests, and because it represents an
individual right, it can be waived.” Travelers Casualty and Surety Co. of America v. Unistar
Financial Service Corp., 35 F. App’x 787, 789 (10th Cir. 2002) (citing Ins. Corp. of Ir., Ltd. v.
Compagnie des Bauxites de Guinee, 456 U.S. 694, 702-03 (1982)).
Here, the Complaint sets forth that the Parties are diverse, [#12-2 at ¶¶ 2, 3], and asserts
that “hundreds of thousands of dollars (if not millions) have been withheld from the 50/50
business agreement,” and therefore may be at issue. [Id. at ¶ 15]. Additionally, Plaintiffs
indicated on the civil cover sheet filed in state court that they were seeking a monetary judgment
over $100,000. See [#12-1]. See also Paros Properties LLC v. Colorado Casualty Ins. Co., 835
F.3d 1264, 1272 (10th Cir. 2016) (holding that civil cover sheet is an “other paper” under §
1446(b)(3) such that it puts defendant on notice “that starts the removal clock”). Accordingly,
subject matter jurisdiction exists and Defendants were on notice as of the date of service,
September 8, 2017, that the action was removable under 28 U.S.C. § 1446. Upon removing the
case, Defendants could then raise any defense regarding lack of personal jurisdiction so long as
they did so before filing responsive pleadings. See Fed. R. Civ. P. 12(b)(2). See also Morris &
Co. v. Skandinavia Ins. Co., 279 U.S. 405, 409 (1929) (holding removal of a case to federal court
does not constitute a waiver of the right to object to lack of personal jurisdiction). See, e.g.,
Nagim v. Irving, 427 F. App’x 663 (10th Cir. 2011) (affirming district court’s dismissal of case
where defendants removed the action to federal court and then moved to dismiss for lack of
Additionally, Plaintiffs filed the First Amended Complaint as a matter of right on
December 7, 2017, [#12-8; see #12-10], and the paragraphs indicating the Parties’ citizenship
and the potential amount in controversy remain unchanged between pleadings. Compare [#12-2
at ¶¶ 2, 3, 15] with [#12-8 at ¶¶ 2, 3, 22]. Section 1446(b)(3) states:
if the case stated by the initial pleading is not removable, a notice of removal may
be filed within 30 days after receipt by the defendant, through service or
otherwise, of a copy of an amended pleading, motion, order or other paper from
which it may first be ascertained that the case is one which is or has become
Thus, the court finds that Defendants were on notice that federal subject matter existed as
of September 8, 2017, yet failed to remove until January 11, 2018. Any concern over personal
jurisdiction, in and of itself, does not toll the deadline for removal. Accordingly, the removal is
For the reasons set forth herein, IT IS ORDERED that:
Defendants’ Motion to Transfer Venue [#20] is DENIED AS MOOT;
Plaintiffs’ Motions to Remand [#23, #24] are DENIED AS MOOT; and
The action is REMANDED to the District Court for Weld County, Colorado.
DATED: February 8, 2018
BY THE COURT:
s/Nina Y. Wang__________
United States Magistrate Judge
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