Wells vs. Fernandez, No. 07-1062 (10th Cir. 2007)

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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, v. No. 07-1062 (District of Colorado) JON ATH AN JAM ES FERN AN DEZ, and DO NN A FERN AN DEZ, (D.C. No. 06-CV-02315-ZLW ) 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 -2-

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