Rodriguez-Cayro v. Rodriquez-Cayro

Filing 20

ORDER TO SHOW CAUSE Why the Case Should Not be Transferred to State Court Because This Court Lacks Jurisdiction. Accordingly, the defendant, Narciso Rodriguez-Cayro, is hereby ORDERED to show cause why this action should not be transf erred to state court because the Notice of Removal was not timely filed. Furthermore, the defendant must allege his own domicile as well as the plaintiffs domicile at the time that the initial Complaint was filed. See Siloam Springs Hotel,781 F.3d at 1238. The defendant must respond by January 5, 2018. A failure to respond will result in an order transferring the case back to state court. Signed by Judge Jill N. Parrish on 12/12/2017. (jwt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
KYLI RODRIGUEZ-CAYRO,

v.

ORDER TO SHOW CAUSE WHY THE
CASE SHOULD NOT BE TRANSFERRED
TO STATE COURT BECAUSE THIS
COURT LACK S JURISDICTION

NARCISO RODRIGUEZ-CAYRO,

Case No. 2:17-cv-01197-JNP

Defendant/Counterclaim Plaintiff/Third-Party
Plaintiff,

District Judge Jill N. Parrish

Plaintiff/Counterclaim Defendant,

v.
MARNIE LYNN ANTONIK,
Third-Party Defendant.
The court “must, sua sponte, satisfy itself of its power to adjudicate in every case and at
every stage of the proceedings.” State Farm Mut. Auto. Ins. Co. v. Narvaez, 149 F.3d 1269,
1270–71 (10th Cir. 1998). Upon review of the Notice of Removal and the appended documents
filed in the state court proceedings, it appears that this court may not have removal jurisdiction
over this lawsuit.
The Notice of Removal filed by defendant Narciso Rodriguez-Cayro does not appear to
be timely. A defendant generally has “30 days after receipt by or service on that defendant of the
initial pleading or summons . . . to file the notice of removal.” 28 U.S.C. § 1446(b)(2)(B). But,
“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 removable.” Id. § 1446(b)(3).

In this case, the initial pleading in the state-court action was served on or around June 26,
2017. The initial Complaint alleged that the plaintiff Kyli Rodriguez-Cayro was residing in Utah
and that the defendant Narciso Rodriguez-Cayro was residing in Pennsylvania. Narciso moved to
dismiss the complaint for lack of personal jurisdiction and for a failure to state a claim. The state
court denied the motion to dismiss, but granted Kyli leave to file an amended complaint, which
she did on November 2, 2017. The Amended Complaint contained allegations regarding Narciso
and Kyli’s respective residences that are identical to the allegations made in the initial
Complaint. On November 14, 2017, Narciso filed a Notice of Removal in this court based upon
diversity jurisdiction. Narciso alleged that the notice was timely because it was filed within 30
days after he received the Amended Complaint.
The Notice of Removal was filed well beyond the 30-day period following service of the
initial Complaint. Thus, the notice was timely only if the case stated by the initial Complaint is
not removable and the Amended Complaint constituted an amended pleading “from which it
may first be ascertained that the case is one which is or has become removable.” Id.
§ 1446(b)(3). The initial Complaint arguably did not state a removable case because it alleged
the parties’ residence rather than their domicile. See Siloam Springs Hotel, L.L.C. v. Century
Surety Co.,781 F.3d 1233, 1238 (10th Cir. 2015) (“An individual’s residence is not equivalent to
his domicile and it is domicile that is relevant for determining citizenship.”); Whitelock v.
Leatherman, 460 F.2d 507, 514 n.14 (10th Cir. 1972) (“[A]n allegation that a party defendant is
a resident of a state is not equivalent to an allegation of ‘citizenship’ and is ‘insufficient to confer
jurisdiction upon the District Court.’” (citation omitted)). But even if the initial Complaint did
not state a case that was removable, it appears that the Amended Complaint did not constitute an
amended pleading that would have notified Narciso for the first time that diversity jurisdiction

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existed in the case. The residency allegations in the Amended Complaint are identical to the
allegations found in the initial Complaint. Therefore, the Amended Complaint did not trigger a
new 30-day period in which to file a notice of removal.
Accordingly, the defendant, Narciso Rodriguez-Cayro, is hereby ORDERED to show
cause why this action should not be transferred to state court because the Notice of Removal was
not timely filed. Furthermore, the defendant must allege his own domicile as well as the
plaintiff’s domicile at the time that the initial Complaint was filed. See Siloam Springs Hotel,781
F.3d at 1238. The defendant must respond by January 5, 2018. A failure to respond will result in
an order transferring the case back to state court.
Signed December 12, 2017.
BY THE COURT

______________________________
Jill N. Parrish
United States District Court Judge

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