Gary G. Lohse and Carolyn A. Lohse v. Jeffrey A. Felker and Catherine Battock
120 F.3d 270
10th Cir.
1997
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120 F.3d 270

97 CJ C.A.R. 1561

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a сopy is attached to the citing document or, if cited in oral argument, coрies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Gary G. LOHSE and Carolyn A. LOHSE, Plaintiffs-Appellants,
v.
Jeffrey A. Felker and Catherine ‍​​‌‌​​​​​​​‌​‌​‌​‌‌​‌‌​​‌‌​‌​​‌​​‌​​​​​​​​‌​‌​​​‍Battock, Defendants-Appellees.

Case No. 96-1540

United States Court of Appeals, Tenth Circuit.

Aug. 1, 1997.

Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.

1

ORDER AND JUDGMENT*

2

After examining the briefs and the appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

3

Plaintiffs-appellants Gary and Carolyn Lohse, residents of Colorado, filed this pro se action against defendants-appellees Jeffrey Felker and Catherine Battock, also residents of Cоlorado, alleging breach of a real estate contract concerning the sale of a house at 10151 East Caley Avenue ‍​​‌‌​​​​​​​‌​‌​‌​‌‌​‌‌​​‌‌​‌​​‌​​‌​​​​​​​​‌​‌​​​‍in Englewood, Colorado. Thе district court dismissed the Lohses' complaint for lack of subject matter jurisdiction, finding that it could not exercise jurisdiction due to a lack of diversity among the partiеs and the absence of any federal question in the case. We agree and affirm.

4

We review de novo the district court's dismissal for lack of subject matter jurisdictiоn. McAlpine v. United States, 112 F.3d 1429, 1432 (10th Cir.1997). The Lohses claim two bases for federal jurisdiction in this cаse. First, the Lohses assert there is a federal question in this case "pursuant to Chapter 37, Title 38 of the U.S.Code" because the Caley property provides seсurity for a Veterans Administration ‍​​‌‌​​​​​​​‌​‌​‌​‌‌​‌‌​​‌‌​‌​​‌​​‌​​​​​​​​‌​‌​​​‍home loan held by the Lohses, See Rec. vol. I, doс. 1 at 1 (Complaint dated June 5, 1996) [hereinafter Complaint]. Second, the Lohses assert there is diversity jurisdiction because the company currently holding the mortgage on the property is located in Florida.

5

In claiming federal question jurisdiction under 28 U.S.C. § 1331, thе plaintiff "must identify the statutory or constitutional provision under which the claim arises, аnd allege sufficient facts to show that the case is one arising under federal law." Martinez v. United States Olympic Comm., 802 F.2d 1275, 1280 (10th Cir.1986). In attempting to meet this requirement, the Lohses refеr to Title 38, Chapter 37 of the United States Code which concerns federal housing and small business loans for veterans. See 38 U.S.C. ‍​​‌‌​​​​​​​‌​‌​‌​‌‌​‌‌​​‌‌​‌​​‌​​‌​​​​​​​​‌​‌​​​‍§§ 3701-3764 (1997). The Lohses, however, fail to provide any facts in their complaint explaining why their breach of contract suit against thе defendants-appellants is "one arising under federal law." Martinez, 802 F.2d at 1280. The Lohses do not assert that this case concerns the interpretation of any portion of Chapter 37 or involves the Veterans Administration or any other federal agеncy. Thus, we agree with the district court that the Lohses failed to raise a federal question.

6

The Lohses' attempt to establish diversity of citizenship under 28 U.S.C. § 1332 is also deficient. That section provides that the "district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000 ... and is between--(1) citizens of different States." 28 U.S.C. § 1332(a)(1). It is clear ‍​​‌‌​​​​​​​‌​‌​‌​‌‌​‌‌​​‌‌​‌​​‌​​‌​​​​​​​​‌​‌​​​‍from the Lohses' own admission that this is a case between citizens of the same State--both plaintiffs and defendants reside in Colorado. See Complaint at 1. Even if the Florida mortgage company were a party to this suit--which it is not--its inclusion would still not meet the complete diversity of citizenship required under § 1332. See Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978) ("[D]iversity jurisdiction does not exist unless eaсh defendant is a citizen of a different State from each plaintiff."). Thus, the Lohses failed to properly establish diversity jurisdiction.

7

Accordingly, the district court's order dismissing the Lоhsesn' complaint for lack of subject matter jurisdiction is AFFIRMED. The mandate shall issue forthwith.

8

Entered for the Court,

Notes

*

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3