The Court further notes that “[s]ubject matter jurisdiction cannot be conferred or 1

waived by consent, estoppel, or failure to challenge jurisdiction early in the

proceedings.” Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir. 1995).

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge Philip A. Brimmer

Civil Action No. 11-cv-02274-PAB-BNB

KFORCE INC.,

Plaintiff,

v.

EVERETT COSTA,

Defendant.

ORDER

This matter is before the Court on defendant’s motion to dismiss for lack of

subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) [Docket No. 21]. Plaintiff

filed a response [Docket No. 28]. Defendant still has time left to file a reply. However,

defendant has since joined a motion seeking court action, thereby invoking the Court’s

jurisdiction. Therefore, the Court finds that the motion to dismiss is ripe for disposition.1

See D.C.COLO.LCivR 7.1C (court may rule “on a motion at any time after it is filed”).

Absent an assurance that jurisdiction exists, a court may not proceed in a case.

See Cunningham v. BHP Petroleum Great Britain PLC, 427 F.3d 1238, 1245 (10th Cir.

2005). It is well established that “[t]he party invoking federal jurisdiction bears the

burden of establishing such jurisdiction as a threshold matter.” Radil v. Sanborn W.

Camps, Inc., 384 F.3d 1220, 1224 (10th Cir. 2004). Plaintiff invokes 28 U.S.C.

Case 1:11-cv-02274-PAB-BNB Document 33 Filed 11/15/11 USDC Colorado Page 1 of 3
2

§ 1332(a)(1) as the basis for this Court’s diversity jurisdiction. Section 1332(a)(1)

states: “The district 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.” 

Defendant asserts that the complaint’s allegations regarding the amount in

controversy are too speculative to support jurisdiction. In its complaint, plaintiff alleges

that the amount in controversy exceeds $75,000.00. See Docket No. 1 at 2. “The rule

governing dismissal for want of jurisdiction in federal court is that, unless the law

provides otherwise, the amount claimed by the plaintiff controls if the claim is

apparently made in good faith.” Adams v. Reliance Standard Life Ins. Co., 225 F.3d

1179, 1183 (10th Cir. 2000) (citing St. Paul Indemnity Co. v. Red Cab Co., 303 U.S.

283, 288-89 (1938)); see Woodmen of the World Life Ins. Society v. Manganaro, 342

F.3d 1213, 1216 (10th Cir. 2003) (“There is a strong presumption favoring the amount

alleged by the plaintiff.”). Plaintiff bears the burden of showing that “it is not legally

certain that the claim is less than the jurisdictional amount.” Woodmen, 342 F.3d at

1216. “Generally, dismissal under the legal certainty standard will be warranted only

when a contract limits the possible recovery, when the law limits the amount

recoverable, or when there is an obvious abuse of federal court jurisdiction.” Id. at

1217 (citation omitted). None of those situations apply here, and the Court finds no

other basis to believe that the amount in controversy here is legally certain not to

exceed $75,000.00.

Therefore, it is

Case 1:11-cv-02274-PAB-BNB Document 33 Filed 11/15/11 USDC Colorado Page 2 of 3
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ORDERED that defendant’s motion to dismiss for lack of subject matter

jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) [Docket No. 21] is DENIED.

DATED November 15, 2011.

BY THE COURT:

 s/Philip A. Brimmer 

PHILIP A. BRIMMER

United States District Judge

Case 1:11-cv-02274-PAB-BNB Document 33 Filed 11/15/11 USDC Colorado Page 3 of 3