United States District Court, D. Colorado
ORDER TO REMAND
Y. Wang United States Magistrate Judge.
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
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,
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 [#1]. 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].
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.
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].
issue of personal jurisdiction is distinct and separate from
the issue of subject matter jurisdiction. 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)).
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 personal jurisdiction).
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
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.
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 untimely.
reasons set forth herein, IT ...