Opinion
Civil Action No. 00-2054-KHV
May 1, 2000
MEMORANDUM AND ORDER
This matter comes before the Court on defendant's Motion To Dismiss And Memorandum In Support (Doc. # 11) 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.3 d 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 sues defendant for negligence, alleging that his injuries occurred August 12, 1995. On May 5, 1997, plaintiff filed an identical action in Kansas state court. At the time, plaintiff was domiciled in Kansas. Shortly after filing suit, plaintiff moved to Oklahoma and became domiciled there. Plaintiff voluntarily dismissed his state action on January 10, 2000, then filed this case on February 1, 2000.
Plaintiff also filed two identical actions in federal court, but those actions are not relevant to the issues discussed here.
Analysis
Plaintiff alleges that this Court has diversity jurisdiction 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 at the time the complaint is filed. Thurston, 920 F. Supp. at 155. When plaintiff filed his complaint here, he was a citizen of Oklahoma. Defendant does not contend otherwise. Rather, defendant argues that the Court must refer back to May 5, 1997, when plaintiff filed his state action.
Under K.S.A. § 60-513, a two-year statute of limitations applies to plaintiffs claim of negligence. Plaintiff therefore relies on the savings provision of K.S.A. § 60-518 to avoid the statute of limitations. Defendant contends that plaintiff commenced his suit when he filed the original state action and that because plaintiff lived in Kansas at the time, the Court lacks subject matter jurisdiction.
Section 60-518 provides that:
If any action be commenced within due time, and the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff . . . may commence a new action within six (6) months after such failure.
Because the law does not directly support defendant's position, he is forced to analogize to cases which discuss removal jurisdiction. The analogy does not hold, however, because defendant is asking the Court to look past the instant action to the complaint in a prior action. Defendant improperly attempts to blur the line between distinct actions, even though jurisdictional precedent does not support such a blurring. Most importantly, defendant fails to cite (and the Court is unable to find) a removal case which looks past the original complaint in the removed action. See Bank IV Salina, N.A. v. Aetna Cas. Sur. Co., 783 F. Supp. 1315, 1316 (D. Kan. 1992) (looking to state court complaint to determine if diversity jurisdiction existed). The Court is aware of no authority which would allow it to look to a different complaint as a basis for remand. The determination of federal subject matter jurisdiction is not concerned with prior actions, even actions which are virtually identical.
Defendant notes that plaintiff could not have removed his original state action to federal court and argues that plaintiff should not be allowed the "tactical advantage" of doing essentially the same thing now, While defendant is correct that plaintiff could not have removed his state action, this does not mean that the Court can look back to plaintiffs prior action to determine its jurisdiction. 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.
Plaintiff cites the Court to Doe v. Hartz, a case which 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. # 11) filed March 17, 2000 be and hereby is DENIED.