Wagner Construction, Inc. et al v. North Dakota State Water Commission

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Wagner Construction, Inc., and )
HDDS, LLC, )
)
Plaintiffs, ) ORDER OF DISMISSAL
)
vs. ) Case No. 1:22-cv-154
)
North Dakota State Water Commission, )
)
Defendant. )
______________________________________________________________________________
Before the Court is a stipulation of dismissal filed on September 27, 2023. See Doc. No. 20.
The Court previously ordered the Plaintiffs to supplement the record with evidence establishing the
citizenship of HDDS , LLC (“HDDS”) in order that the Court might ascertain whether diversity was
complete. See Doc. No. 17. The stipulation states, in part, that “HDDs is unable to make the
requisite showing of domicile.” See Doc. No. 20, ¶ 6. The stipulation contemplates the action
between HDDS and the North Dakota State Water Commission will be dismissed pursuant to Rule
41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure without prejudice. The stipulation further
contemplates that the action between Wagner Construction, Inc. and the North Dakota State Water
Commission would go forward. The stipulation necessarily assumes the removal of HDDS from
the case will establish complete diversity. However, the dismissal of HDDS does not solve the
problem.
Diversity of citizenship is determined at the time the action is filed. Grupo Dataflux v. Atlas
Global Group, L.P., 541 U.S. 567, 570-71 (2004); Associated Ins. Mgmt. Corp. v. Ark. Gen.
Agency, Inc., 149 F.3d 794, 796 (8th Cir. 1998). “Diversity jurisdiction, once established, is not
defeated by the addition of a nondiverse party to the action” or subsequent events provided the
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subsequently added nondiverse party was not indispensable at the time the action was commenced.
Freeport-McMoRan, Inc. v. K N Energy, Inc., 498 U.S. 426, 428 (1991); Dominium Austin Partners,
L.L.C. v. Emerson, 248 F.3d 720, 725 (8th Cir. 2001). The corollary to this rule is that “if diversity
did not exist when the complaint was filed, it cannot be created by a change of domicile by one of
the parties or some other event.” Saadeh v. Farouki, 107 F.3d 52, 57 (D.C. Cir. 1997). “To
determine jurisdiction, we look to the parties’ status at the lawsuit’s filing.” OnePoint Solutions,
LLC v. Borchert, 486 F.3d 342, 346 (8th Cir. 2007). “Subsequent actions do not affect the court’s
jurisdiction.” Aetna Cas. & Sur. Co. v. Hillman, 796 F.2d 770, 776 (5th Cir. 1986).
In the stipulation, the parties agree that complete diversity cannot be established as of the
time of the filing of the complaint. The Court cannot proceed without subject matter jurisdiction.
The only recourse is dismissal. The Court ORDERS the action be dismissed for lack of subject
matter jurisdiction without prejudice and without attorney’s fees, costs, or disbursements to any
party.
IT IS SO ORDERED.
Dated this 28th day of September, 2023.
/s/ Daniel L. Hovland
Daniel L. Hovland, District Judge
United States District Court
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