Mikelson v. Conrad ( 2021 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 5, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
BRENT MIKELSON,
Plaintiff - Appellant,
v. No. 20-1271
(D.C. No. 1:20-CV-01545-PAB)
EMERSON CONRAD, III, M.D.; VAIL (D. Colo.)
HEALTH, d/b/a Vail Health Hospital,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before HARTZ, BALDOCK, and CARSON, Circuit Judges.
_________________________________
The district court sua sponte dismissed Brent Mikelson’s complaint because he
failed to provide an evidentiary basis for the allegations in the complaint establishing
diversity jurisdiction. Mr. Mickelson appeals. We exercise jurisdiction under 28
U.S.C. § 1291 and reverse because the district court erroneously required additional
evidence to support Mr. Mikelson’s well-pleaded allegations.
*
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). The case is therefore
ordered 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Mr. Mikelson filed suit in the United States District Court for the District of
Colorado alleging that while under anesthesia during surgery at Vail Health hospital
he “suffered a severe hypoxic event that resulted in hypoxic/anoxic brain damage.”
Aplt. App. at 6. His claims are for medical malpractice by the attending
anesthesiologist, Dr. Emerson Conrad, and for vicarious liability against Vail Health
because of negligence by its employees.
Mr. Mikelson asserted that the federal district court had jurisdiction under its
diversity jurisdiction. See 28 U.S.C. § 1332(a) (“[D]istrict courts shall have original
jurisdiction of all civil actions where the matter in controversy exceeds the sum or
value of $75,000, exclusive of interest and costs, and is between . . . citizens of
different States.”). The original complaint alleged that he was a resident of Alabama,
that Dr. Conrad was a resident of Colorado, and that Vail Health was “a person” with
a principal place of business in Colorado. Aplt. App. at 5. His complaint also
alleged damages in excess of $75,000.
Before the defendants answered, the district court issued an order to show
cause. The order stated that the allegations of the complaint were “insufficient to
demonstrate the citizenship of the parties.” Id. at 10. It explained (1) that the
complaint erroneously alleged Mr. Mikelson’s and Dr. Conrad’s residences rather
than their domiciles, and (2) that the court was “unable to determine Vail Health’s
citizenship” because the complaint failed to “allege what type of business entity Vail
Health is.” Id. at 11. Because of the insufficient allegations it required Mr. Mikelson
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to “show cause why th[e] case should not be dismissed . . . [for] lack of subject
matter jurisdiction.” Id. at 12.
Mr. Mikelson responded by filing an amended complaint. It alleged that he
was domiciled in and a citizen of Alabama, that Dr. Conrad was domiciled in and a
citizen of Colorado, and that Vail Health was a “Colorado corporation” with its
principal place of business in Colorado. Id. at 16. The amended complaint was
otherwise identical to the initial complaint.
The district court then issued a second order to show cause. It said that the
court was “still unable to determine the citizenship of any of the parties” because Mr.
Mikelson failed to provide an “evidentiary basis” for his allegations. Id. at 21. The
order also noted that Mr. Mikelson’s amended complaint failed to comply with the
court’s local rules. Accordingly, the court provided Mr. Mikelson “one more
opportunity” to show jurisdiction. Id. at 22. In response to the second show-cause
order Mr. Mikelson refiled the same amended complaint, modified only to comply
with the local rules. The court reviewed the refiled amended complaint and
acknowledged that it complied with the local rules, but it concluded that it still failed
to “address[] any of the jurisdictional deficiencies previously noted.” Id. at 25. The
court dismissed the case before either defendant filed an answer.
We review de novo the district court’s dismissal for lack of subject-matter
jurisdiction. See Grynberg v. Kinder Morgan Energy Ptrs., 805 F.3d 901, 905 (10th
Cir. 2015). A plaintiff bears the burden of establishing jurisdiction. See Dudnikov v.
Chalk & Vermilion Fine Arts, 514 F.3d 1063, 1070 (10th Cir. 2008). But at the
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pleading stage we “tak[e] as true all well-pled (that is, plausible, non-conclusory, and
non-speculative) facts.” Id. (citation omitted).
To establish diversity among the parties the plaintiff must allege that all
defendants are citizens of a different state than the plaintiff. See Grynberg, 805 F.3d
at 905. Typically, a plaintiff satisfies this requirement by providing “a short and
plain statement of the grounds for the court’s jurisdiction” in the complaint. Fed. R.
Civ. P. 8(a)(1). For individuals, this jurisdictional statement must identify the
person’s domicile. See Siloam Springs Hotel, L.L.C. v. Century Sur. Co., 781 F.3d
1233, 1238 (10th Cir. 2015). For corporations, this statement must identify the state
of incorporation and the state where the corporation maintains its principal place of
business. See 28 U.S.C. § 1332(c)(1).
Plaintiff’s amended complaint alleges that Mr. Mikelson is domiciled in and a
citizen of Alabama, that Dr. Conrad is domiciled in and a citizen of Colorado, and
that Vail Health is a Colorado corporation with its principal place of business in
Colorado. These are well-pleaded allegations. As Mr. Mikelson explains, he did not
merely allege that diversity exists; rather, he alleged the specific facts supporting
diversity. This sufficed to establish complete diversity among the parties. See
Grynberg, 805 F.3d at 905.
Despite these well-pleaded allegations the district court dismissed Mr.
Mikelson’s complaint because he did not provide supporting evidence. True, a court
can require an evidentiary showing of jurisdiction to resolve disputed facts or
inadequate allegations. Cf. Dart Cherokee Basin Operating Co., LLC v. Owens, 574
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U.S. 81, 87–89 (2014) (reversing district court for requiring evidentiary showing to
support removal under Class Action Fairness Act; “‘a short and plain statement’”
typically suffices for removal based on diversity jurisdiction, although additional
evidence may be required where diversity allegations are contested (quoting 28
U.S.C. § 1446(a))). And the district court correctly questioned Mr. Mikelson’s initial
complaint because that complaint alleged Mr. Mikelson’s and Dr. Conrad’s
residences rather than their domiciles, and it failed to identify whether Vail Health
was a corporation or some other business entity. See Siloam Springs Hotel, L.L.C.,
781 F.3d at 1236–38.
But critically, when the district court issued its first show-cause order, it
repeatedly stated that the complaint’s “allegations [were] insufficient.” Aplt. App. at
10 (emphasis added). The show-cause order did not challenge the factual basis for
the allegations or otherwise suggest that the complaint required evidentiary support.
Thus, Mr. Mikelson’s revised allegations should have resolved this matter. No
opposing party challenged the allegations. See Radil v. Sanborn W. Camps, Inc., 384
F.3d 1220, 1224 (10th Cir. 2004) (court may consider evidence “[w]here a party
attacks the factual basis for subject matter jurisdiction” (emphasis added)). And, as
Mr. Mikelson notes, the court never explained why it doubted the revised
allegations—either in its second show-cause order or in its order dismissing the
complaint. Because Mr. Mikelson’s amended complaint sufficiently alleged the basis
for diversity jurisdiction, the district court erred in dismissing the complaint.
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We REVERSE the district court’s order dismissing the complaint and
REMAND for further proceedings consistent with this Order.
Entered for the Court
Harris L Hartz
Circuit Judge
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