Wells v. Fernandez , 243 F. App'x 434 ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
August 9, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
CLARISSA W ELLS,
Plaintiff-Appellant, No. 07-1062
v. (District of Colorado)
JON ATH AN JAM ES FERN AN DEZ, (D.C. No. 06-CV-02315-ZLW )
and DO NN A FERN AN DEZ,
Defendants-Appellees.
OR D ER AND JUDGM ENT *
Before BR ISC OE, EBEL, and M cCO NNELL, Circuit Judges.
This automobile tort suit was dismissed from federal district court because
the parties’ citizenship was not completely diverse. The plaintiff, Appellant
C larissa W ells, resides in A urora, Colorado. Among the defendants are two
persons, Jonathan and Donna Fernandez, who the complaint alleges reside in
Denver, Colorado. Id. Under longstanding precedent, a federal court has
diversity jurisdiction under 28 U.S.C. § 1332(a) to entertain state-law claims only
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
when “each defendant is a citizen of a different State from each plaintiff.” Owen
Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978). M s. W ells argued in
district court and reiterates on appeal that there is no evidence either way to
establish the citizenship of the defendants. This argument does nothing to further
M s. W ells’s cause. As the person invoking federal court jurisdiction, M s. W ells
bears the burden of proving that both this Court and the district court have subject
matter jurisdiction. M cNutt v. Gen. M otors Acceptance Corp., 298 U.S. 178, 189
(1936); Penteco Corp. Ltd. P’ship— 1985A v. Union Gas Sys., Inc., 929 F.2d
1519, 1521 (10th Cir. 1991). If she is correct that no evidence exists to establish
the defendants’ citizenship, this failure of proof is an additional reason that M s.
W ells’s claim should be dismissed without prejudice— not a reason to reinstate
her lawsuit. Therefore, M s. W ells’ APPEAL IS DISM ISSED.
Appellant’s motion to proceed in form a pauperis is GRANTED.
Entered for the Court,
M ichael W . M cConnell
Circuit Judge
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