Zebrowski v. Zebrowski

• Decision Date: 08 December 2010
• Docket Number: Civil Action No. 10-cv-02582-CMA-KMT
• Parties: JOSEPH A. ZEBROWSKI, JR., a Colorado resident; CHEMICAL ALLOY CORPORATION, an Oklahoma Corporation; and EL PASO PARTNERS LIMITED PARTNERSHIP, an Oklahoma Limited Partnership, Plaintiffs, v. ALLEN W. ZEBROWSKI, a Texas resident; ANA MARIA HUERTA RAMOS, a Mexican national; and POLO y RON MINERALS, S.A. de C.V., A Mexican corporation, Defendants.
• Court: U.S. District Court — District of Colorado

JOSEPH A. ZEBROWSKI, JR., a Colorado resident;

CHEMICAL ALLOY CORPORATION, an Oklahoma Corporation; and

EL PASO PARTNERS LIMITED PARTNERSHIP, an Oklahoma Limited Partnership, Plaintiffs,

v.ALLEN W. ZEBROWSKI, a Texas resident; ANA MARIA HUERTA RAMOS, a Mexican national; andPOLO y RON MINERALS, S.A. de C.V., A Mexican corporation, Defendants.

Civil Action No. 10-cv-02582-CMA-KMT

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Date: December 8, 2010

ORDER GRANTING MOTION TO REMAND, DENYING REQUEST FOR FEES AND COSTS, AND GRANTING MOTION FOR LEAVE TO FILE SUR-REPLY

Judge Christine M. Arguello

This matter is before the Court on Plaintiffs Joseph A. Zebrowski, Jr., Chemical Alloy Corporation, and El Paso Partners Limited Partnership's Motion to Remand. (Doc. #10) and Defendants Allen W. Zebrowski, Ana Maria Huerta Ramos, and Polo y Ron Minerales, S.A. de C.V.'s Motion for Leave to File Sur-Reply to Plaintiffs' Reply in Support of Their Motion to Remand (Doc. #19). For the following reasons, the Motion is granted.

I. BACKGROUND

This matter arises from a contractual dispute between the parties. As set forth in the Verified Complaint for Injunctive and Other Relief (Doc. # 1-4), Plaintiff Joseph Zebrowski and Defendant Allen Zebrowki (the "Zebrowski Brothers") entered into a business venture between themselves and with others to raise money for and engage in the exploration and development of mineral properties in Mexico. (Id. at 2). In order to achieve these goals, the Zebrowski Brothers formed Plaintiff corporation El Paso Partners to raise money from limited partner investors for the exploration venture. (Id. at 3). They also created Plaintiff corporation Chemical Alloy Corporation ("Chemical Alloy") to be the general partner of El Paso Partners. Joseph Zebrowski would serve as President and Allen Zebrowski would serve as Vice President and Secretary, and the two brothers would each be 50% owners of Chemical Alloy. (Id.) Because laws in Mexico at the time did not permit foreigners to own directly mineral rights or mining land in Mexico, the Zebrowski Brothers acquired a Mexican company, Defendant Polo y Ron Minerales, S.A. de CV., to be the nominal owner of any mineral rights they explored and developed. Allen Zebrowski's wife, Defendant Ana Maria Huerta Ramos, who was a Mexican citizen residing in Texas and the Mexican state of Chihuahua, would be Polo y Ron's president, without any executive powers or financial duties, and would hold 49% interest in Polo y Ron. Allegedly, in an agreement reduced to writing on December 20, 1991 (the "December 1991 Agreement"), all parties agreed that all assets and mineral rights of Polo y Ron would be held for the benefit of and owned by El Paso Partners. (Id.; see also Id., Ex. 1 at Doc. #1-4 at 8-16).

Eventually, the Zebrowski Brothers successfully developed and sold mineral properties that belonged to El Paso Partners. The sale of these properties generated installment payments, which were initially received into El Paso Partners' bank account.

However, in 2007, Defendants Huerta Ramos and Allen Zebrowski allegedly diverted installment payments to Defendant Polo y Ron's bank account. (Id.) Also in 2007, Defendant Allen Zebrowski allegedly created a new company to hold ownership in a mining project that purportedly should have been owned by El Paso Partners. (Id. at 4). Plaintiffs also allege that Defendant Allen Zebrowski wrongfully placed five other mineral claims into the sole name of his wife, Defendant Huerta Ramos. (Id.)

As a result of the aforementioned activity, Plaintiffs filed a Verified Complaint for Injunctive and Other Relief in Jefferson County District Court on September 22, 2010, alleging claims of conversion, breach of contract, and breach of fiduciary duty, and seeking declaratory and injunctive relief. (Doc. ## 1-1, 1-2, 1-3, 1-4.) On October 22, 2010, Defendants filed a Notice of Removal from Jefferson County District Court, asserting that the Court has original jurisdiction over this action under 28 U.S.C. § 1332, because the amount in controversy exceeds the sum of $75,000, exclusive of interests and costs, and the action is between citizens of different states and citizens of a foreign state. (Doc. # 1.) On November 2, 2010, Plaintiffs filed a Motion to Remand to state court. (Doc. #10.) Defendants responded on November 12, 2010 (Doc. #16), and Plaintiffs replied on November 18, 2010 (Doc. #17). On November 24, 2010, Defendants filed a Motion for Leave to File Sur-Reply to Plaintiffs' Reply in Support of Their Motion to Remand, along with their Sur-Reply. (Doc. ##19, 19-1.) Plaintiffs responded to Defendants' Motion for Leave to File a Sur-Reply on December 6, 2010. (Doc. # 21.)

II. ANALYSIS

Plaintiffs seek remand to the Jefferson County District Court because, in their view, the parties are not diverse. In particular, Plaintiffs assert that both Plaintiff El Paso Partners Limited Partnership and Defendant Allen Zebrowski are citizens of the Texas. (Doc. # 10 at 3.) In contrast, Defendants maintain that El Paso Partners Limited Partnership is not a citizen of Texas, and, therefore, diversity exists among the parties. (Doc. # 16 at 1-2.) Alternatively, Defendants argue that, even if El Paso Partners was a citizen of Texas, El Paso Partners is only a nominal plaintiff, not a real party in interest, and, therefore, its participation in the litigation should not destroy diversity. (Id. at 5).

For a case to be removable from state court, the federal court must have jurisdiction. See 28 U.S.C. § 1441 (generally identifying removable actions). "Jurisdiction is a threshold question that a federal court must address[.]" Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002) (internal citations omitted); see also Bradbury v. Dennis, 310 F.2d 73, 74 (10th Cir. 1962) ("the burden is and always has been upon the one asserting it to affirmatively sustain it"). In an action removed from state court by a defendant, the defendant bears the burden of establishing that the requirements of diversity jurisdiction have been met. Martin v. Franklin Capital Corp., 251 F.3d 1284, 1290 (10th Cir. 2001)); see also McPhail v. Deer & Co., 529 F.3d 947, 952-53 (10th Cir. 2008) (a removing defendant must "prove jurisdictional facts by a 'preponderance of the evidence[.]'"). "[R]emoval statutes are to be strictly construed, and all doubts are to be resolved against removal." Fajen v. Found. Reserve Co., Inc., 683 F.2d 331, 333 (10th Cir. 1982) (internal citation omitted) (emphasis added).

A. EL PASO PARTNERS' CITIZENSHIP

As set forth in the Verified Complaint, Plaintiff El Paso Partners is an Oklahoma limited partnership, with its principal place of business in Colorado. (Doc. # 1-4 at 2.) The citizenship of a limited partnership is determined by looking to the citizenship of its general and limited partners. See Carden v. Arkoma Assocs., 494 U.S. 185, 195-96 (1989) (the citizenship of an artificial entity for diversity purposes depends upon the citizenship of each of the persons composing the entity); Depex Reina 9 P'ship v. Tex. Intern. Petroleum Corp., 897 F.2d 461, 463 (10th Cir. 1990) ("In the case of a partnership, the partnership is a citizen of each state in which a partner is a citizen."); McMoran Oil and Gas Co. v. KN Energy, Inc., 907 F.2d 1022, 1024 (10^th Cir. 1990) (for the purpose of determining whether diversity is present where one party is a limited partnership, the court must look to the citizenship of each of the limited partners) reversed on other grounds by 498 U.S. 426 (1991). Accordingly, the Court will look to the citizenship of El Paso Partners' limited partners.

In support of their Motion to Remand, Plaintiffs assert that the parties are not diverse because two of El Paso Partners' limited partners reside in Texas, thus making El Paso Partners a citizen of Texas, and Defendant Allen Zebrowski is also a citizen of Texas. In support, Plaintiffs attach an Affidavit of Plaintiff Joseph Zebrowski, Jr., who is the President and 50% owner of Chemical Alloy Corporation, the general partner of El Paso Partners, in which he attests, in pertinent part, to two of the limited partners' Texas citizenship, without revealing their identities. (Doc. # 10-1.)

In opposition to Plaintiffs' Motion to Remand, Defendants assert that El Paso Partners, does not have any limited partners in Texas and, therefore, complete diversity exists between the parties. (Doc. # 16 at 3.) In support, Defendants attached what is purportedly the only Certificate of Limited Partnership on file with the Oklahoma Secretary of State. (Doc. # 16, Ex. A, at Doc. # 16-1.) Two of the identified limited partners, a Will and Lois Stratton, have an unspecified address in Dallas, Texas. (Id. at 3). However, Defendants assert that, upon conducting their own investigation, they learned that the Strattons currently reside in Washington, D.C., not in Dallas, Texas, as supported by an affidavit by their private investigator. (Doc. # 16, Ex. B, at Doc. # 16-2.)

In their Reply in Support of their Motion to Remand, Plaintiffs do not dispute that William and Lois Stratton are now citizens of Washington, D.C., but contend that two other limited partners reside in Texas, namely Dawn Tankersley and David Dolben. (Doc. # 17 at 2.) In support, Plaintiffs attach a Supplemental Affidavit of Joseph A. Zebrowski, Jr., in which he attests that, pursuant to his powers as the general partner of El Paso Partners, he admitted Dawn Tankersley and David Dolben on August 2, 1993 and December 6, 1994, respectively. (Doc. # 17-1.)

In a Sur-Reply, Defendants ask the Court to give no weight to Plaintiff Zebrowski's unilateral approval of two additional limited partners (Tankersley and Dolben) "without proof that all the limited partners approved the admission of any additional limited partners." (Doc. # 19-1 at 1.) Defendants also urge the Court to question the veracity of Joseph Zebrowski's statements, in light of the fact that Ms....