Opinion
Civil Action No. 99-2564-KHV
May 1, 2000
MEMORANDUM AND ORDER
This matter comes before the Court on defendant's Motion To Dismiss And Memorandum In Support (Doc. # 22) filed March 17, 2000. Defendant argues that this Court lacks subject matter jurisdiction and seeks dismissal under Rule 12(b)(1), Fed.R.Civ.P. For the reasons stated below, defendant's motion is denied.
Standard For 12(b)(1) Motion To Dismiss
Federal courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so. See Castaneda v. Immigration Naturalization Serv., 23 F.3d 1576, 1580 (10th Cir. 1994). The party who seeks to invoke federal jurisdiction bears the burden of establishing that such jurisdiction is proper. See Basso v. Utah Power Light Co., 495 F.2d 906, 909 (10th Cir. 1974). When federal jurisdiction is challenged, plaintiff bears the burden of showing why the case should not be dismissed. See Jensen v. Johnson County Youth Baseball League, 838 F. Supp. 1437, 1439-40 (D. Kan. 1993).
A party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends. When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint's factual allegations. Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995). A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). Id. In such instances, a court's reference to evidence outside the pleadings does not convert the motion to a Rule 56 motion. Id.
Facts
Plaintiff brings suit against defendant for negligence and fraud. On June 24, 1998, plaintiff filed an identical action in Kansas state court. At that time, defendant was domiciled in Kansas. In February of 1999, defendant moved to Arizona and became domiciled there. Plaintiff voluntarily dismissed his state action on August 31, 1999. He filed the instant case three months later, on December 17, 1999.
Analysis
Plaintiff alleges that this Court has diversity jurisdiction over his claims under 28 U.S.C. § 1332. Defendant contends that the parties are not truly diverse. The complaint shows otherwise. Diversity of citizenship is determined at the commencement of the action.Freeport-McMoRan, Inc. v. K N Energy. Inc., 498 U.S. 426, 428 (1991);Thurston v. Page 920 F. Supp. 152, 155 (D.Kan. 1996). Commencement of the action occurs when the complaint is filed. Thurston, 920 F. Supp. at 155. When plaintiff filed his complaint, defendant was a citizen of Arizona. Defendant does not contend otherwise. Rather, defendant argues that the Court must refer back to May 5, 1997, when plaintiff filed his state action.
The parties agree that plaintiffs claims fall outside of the statute of limitations. Plaintiff Regardless of plaintiffs intent, the fact remains that federal subject matter jurisdiction now exists. Despite defendant's implied argument, federal subject matter jurisdiction, by removal or otherwise, does not focus on whether a party is attempting to gain a tactical advantage. Litigants constantly attempt to gain so-called tactical advantages in various ways, including both removing cases and avoiding removal. Defendant cites no authority for the proposition that subject matter jurisdiction is defeated if it somehow affords one party a tactical advantage. Indeed, defendant's argument that plaintiff is attempting to gain a "tactical advantage" rings entirely hollow because defendant's argument for lack of jurisdiction appears to be nothing more than an attempt to gain his own tactical advantage — a return to state court.
In Doe v. Hartz, another federal district court addressed virtually the same argument and likewise rejected it. See Doe v. Hartz, 52 F. Supp.2d 1027, 1040 (N.D. Iowa 1999). The Court agrees entirely with the analysis of the issue contained in Doe. As the Doe court stated,
defendants have attempted to combine two entirely separate inquiries: whether this court has subject matter jurisdiction, and whether, if jurisdiction exists, Doe's claims are timely. Both determinations undeniably require taking a "snapshot" at the time the case was filed. However, determination of diversity jurisdiction requires that the court look only at the circumstances at the time of the "snapshot," but determination of timeliness requires consideration of the "snapshot" as the starting point for a more extensive inquiry — the point from which the court must look back to the events giving rise to the claims, determine the applicable statute of limitations, determine whether the claim has been filed within the requisite limitations period, and finally determine whether anything "saves" an otherwise untimely claim. To put it another way, diversity of citizenship is a question of subject matter jurisdiction, challenged via Rule 12(b)(1) of the Federal Rules of Civil Procedure, while untimeliness is a question of whether the plaintiff has stated a claim upon which relief can be granted, a matter challenged via Rule 12(b)(6).Doe, 52 F. Supp.2d 1039-40. As noted above, the parties were diverse when plaintiff filed the instant suit. The prior state court suit has absolutely no significance over the Court's subject matter jurisdiction here.
The Court has spent far more time on defendant's unsupported argument than it deserves. The motion is denied.
IT IS THEREFORE ORDERED that defendant's Motion To Dismiss And Memorandum In Support (Doc. # 22) filed March 17, 2000 be and hereby is DENIED.