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UNITED
STATES COURT OF APPEALS
TENTH CIRCUIT
ORDER AND JUDGMENT(*)
Before BRISCOE, EBEL, and McCONNELL,
Circuit Judges.
This automobile tort suit was dismissed from federal district court
because
the parties' citizenship was not completely diverse. The plaintiff, Appellant
Clarissa Wells, resides in Aurora, 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
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). Ms. Wells 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
Ms. Wells's cause. As the person invoking federal court jurisdiction, Ms. Wells
bears the burden of proving that both this Court and the district court have subject
matter jurisdiction. McNutt v. Gen. Motors 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 Ms.
Wells's claim should be dismissed without prejudice--not a reason to reinstate her
lawsuit. Therefore, Ms. Wells' APPEAL IS DISMISSED.
Appellant's motion to proceed in forma pauperis is
GRANTED.
Entered for the Court,
Michael W. McConnell
Circuit Judge
FOOTNOTES
Click footnote number to return to corresponding location in the text.
*.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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
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