REV100995

• Permit No: C1981044
• IBM Index Class Name: Revision
• Doc Date: 1/14/2005
• Doc Name: January 2005 Status Report on Litigation Received 1/14/05 ‎(E-mail)‎
• From: Jerry Nettleton
• To: Janet Binns
• Type & Sequence: RN4
• Media Type: D
• Archive: No

12/14/04 T[JE 11:58 FAb 15124a~T711 TDW
Parks and Outdoor Recreation] as a defendant, the presence of the
Division of Parks will destroy diversity under 28 U.S.C, § 1332
[footnote omitted] and will require remand of this case to the state
district court pursuant to 28 U.S.C. § 1447(e).
If this Court were to determine that BTU Empire is correct in its analysis that
the joinder of the State of Colorado into this case pursuant to Fed. R. Civ. P.
19 or Fed. It. Civ. P. 202 would "destroy diversity^~ and require remand to
2 llespite couching its November 24, 2004 motion in terms of requesting the
Court's permission to amend its complaint pursuant to Fed. R. Civ. P. 15(a),
BTU Empire is really seeking to join three additional parties as defendants to
its existing causes of action pursuant to Fed. R. Civ. P. 19 and/or Fed. R. Civ,
P. 20 -Lisa Barker, Glen Stinson and the State of Colorado. BTU Empire's
two causes of action and the requests for relief as stated in its original
complaint remain unchanged in the proposed amended complaint except to add
the three parties.
s In its memorandum, BTU Empire relies on a line of cases that holds that a
State is not a citizen for purposes of diversity jurisdiction. See, e.g., Kansas v.
Home Cable Incorporated, 34 F. Supp. 783, 785 (D. Kansas 1998) where the
Stato of Kansas was the only plaintiff in the case instituted in Kansas State
district court, and, after the Ohio defendant removed the case to federal district
court, the case was remanded oa the gzounds that the State of Kansas was not s
citizen of any State for diversity purposes, and therefore, there was no
diversity of citizenship between anon-citizen of all States and a citizen of
Ohio. The holding in the Xome Cable case is consistent with cases going back
more than a htmdred years. See, e.g., Minnesota v. Northern Secs. Co., 194
U.S. 48 (1904); Postal Telegraph Cable Co, v. Alabama, 155 U.S. 482 (1894);
and Stone v. South Carolina, 117 U.S. 430 (1886). The Barkers believe that if
the State of Colorado were to be joined in the present case as a defendant
under Fed. R. Civ. P. 19 and/or 20, complete diversity of citizenship would not
be affected as the State of Colorado would not be considered a citizen of
Colorado or any other State, but there would still be complete diversity of
citizenship between BTU Empire (a citizen of Delaware and Co]orado) and the
Barkers (citizens of Washington State). Even if Lisa Barker (a citizen of
Washington State) and Glen Stinson (a citizeq of Georgia) were to be joined as
defendants in this case under Fed, ]t. Civ. P. 19 and/or 20 along with the State
of Colorado, BTU &mpire as a citizen of Delaware and Colorado would be on
one side, with three citizens of Washington State, one citizen of no State and
one citizen of Georgia on the other lido. In other words, the Barkers disagree
with BT1J Empire's position that the mere addition of a State as a defendant in
a case that has been brought originally in, or removed to, Federal district court
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