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Amend be granted and that pursuant to Fen. R. CN. P. 12(h)(3), this action be <br />dismissed for lack of diversity jurisdiction <br />I. Background. <br />This is a declaratory judgment action in which Plaintiff is seeking an order of the <br />court recognizing Plaintiffs rights to enter on certain land ("Property") owned in part by <br />Defendants Ray and Brad Barker ("Defendants") for the purpose of pertorming <br />reclamation required by the Colorado Surface Mining and Control Act, §34-33-101, et. <br />seq., C.R.S. ("Act'). On September 27, 2004, Defendants removed this case to this <br />court from the State District Court in Moffat County, Colorado <br />Plaintiff filed its Complaint in the State District Court in Moffat County on August <br />18, 2004. Defendants filed an Answer and Counterclaim on September 27, 2004. <br />Defendants also filed a Notice of Removal pursuant to 28 U.S.C. § 1446(a) on <br />September 27, 2004 Plaintiff filed a Motion to Remand on October 27, 2004, to which <br />the Defendants responded on November 16, 2004. No discovery or other activities <br />have taken place in this marier. <br />When Plaintiff filed its Complaint, it relied upon a letter written by counsel for the <br />Defendants dated January 20, 2004, in which she stated that she represented °Ray and <br />Brad Barker, the owners' of the Property. Therefore, Plaintiff alleged in the Complaint <br />that Ray and Brad Barker were the owners of the Property. In their Answer to <br />paragraph three of the Complaint, the Defendants admitted that they are °amon "the <br />owners of the Property.° <br />The Defendants' Answer gave Plaintrff reason to believe that Defendants' prior <br />