KRISTEN L. MIX, Magistrate Judge.
This matter is before the Court on Defendant Rota Fortunae's ("Rota")
A motion for reconsideration "is an extreme remedy to be granted in rare circumstances." Brumark Corp. v. Samson Res. Corp., 57 F.3d 941, 944 (10th Cir. 1995). It is well established in the Tenth Circuit that grounds for a motion to reconsider include: "(1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice." Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (citing Brumark, 57 F.3d at 948). Therefore, a motion to reconsider is "appropriate [only] where the court has misapprehended the facts, a party's position, or the controlling law. It is not appropriate to revisit issues already addressed or advance arguments that could have been raised in prior briefing." Id.
The Court's Order [#45], issued from the bench during the December 20, 2018 Scheduling Conference,
At the outset, the Court addresses Plaintiff's assertion that the Motion [#46] should be summarily denied for raising arguments that could have been asserted earlier. Response [#47] at 2. While Plaintiff correctly states the standard for a motion to reconsider, the Court is not inclined to construe Defendant Rota's Motion [#46] as "rehashing" arguments the Court explicitly did not invite during the December 20, 2018 hearing. See Pl.'s Ex. A, Transcript of December 20, 2018 Hearing [#47-1] at 7 ("[The Court] will not accept argument with respect to these conclusions.").
With respect to the Motion [#46], Defendant Rota first argues that the Order [#45] is contrary to the controlling law because Santiago, on which this Court relied, conflicts with 28 U.S.C. § 1441 and Tenth Circuit precedent construing that statute. See Motion [#46] at 2-3. In short, Defendant Rota argues that Santiago conflicts to the extent that it holds a party may inquire into the potential citizenship of a John Doe defendant for the purposes of determining the propriety of removal. Id. at 3. After careful review, the Court does not agree. The Tenth Circuit precedents cited by Defendant Rota deal generally with 28 U.S.C. § 1441, which explicitly mandates that federal courts disregard "the citizenship of defendants sued under fictitious names" when considering whether a civil action is removable.
As the parties' briefing on the Motion to Remand [#15] demonstrates, the procedural issue raised by 28 U.S.C. § 1446(b)(2)(A) necessarily turns on whether the John/Jane Does exist and thus, whether their consent to removal was required and obtained. See generally Motion to Remand [#15]; Response [#29]; Reply [#39]. Although Defendant Rota moved for reconsideration of the substituted service order in the state court prior to removal, Rota has not done so in this Court.
Second, Defendant Rota argues that Santiago is inapposite to this case because it is factually distinguishable. See Motion [#46] at 3-4. Although the Court acknowledges that the facts in Santiago are somewhat different from the facts here, those differences are not relevant to the jurisdictional and procedural issues discussed above. Santiago reflects the well-established rule that a federal court has a duty to satisfy itself that its subject matter jurisdiction has been properly invoked. Santiago, 2015 WL 6687617, at *2; see Shaw v. AAA Eng'g & Drafting Inc., 138 F. App'x. 62, 67 (10th Cir. 2005) ("[I]t has long been recognized that a federal court must, sua sponte, satisfy itself of its power to adjudicate in every case and at every stage of the proceeding."). Fairly construed, Santiago simply applies that rule in a case involving uncertainties about the existence of John Doe defendants. See Santiago, 2015 WL 6687617, at *2-3. The court in Santiago concluded that limited discovery into the John Does' identities was an appropriate method for determining disputed facts early in the proceedings before ruling on a motion to remand. Id. at *3. This Court agrees with that conclusion and is not convinced that the immaterial factual differences between Santiago and this case render it inapplicable here.
Third, Defendant Rota argues that the Court's control of future joinder of non-diverse defendants obviates the present jurisdictional concern. See Motion [#46] at 4-5. Although this may be true, Defendant Rota again ignores the procedural issue raised by the fact that the John/Jane Doe Defendants were served prior to removal. The Court has an obligation to follow the law which, in this case, includes 28 U.S.C. § 1446(b)(2)(A). The Court may not simply disregard the statutory requirement that
Fourth, Defendant Rota argues that the Court's Order [#45] allowing limited discovery is not justified because Plaintiff "merely speculates that [some John/Jane Does] might exist and this might destroy diversity." Motion [#46] at 6. The Complaint [#3] alleges that Defendant Rota and the John/Jane Doe Defendants engaged in a conspiracy to pursue a "short and distort scheme" against Plaintiff by disseminating false and misleading statements in order to profit from short positions taken against Plaintiff's stock price. See Compl. [#3] at 1-2. Despite Defendant Rota's arguments to the contrary, the Court finds that this allegation, as more fully described in the Complaint [#3], sufficiently implicates the John/Jane Doe Defendants' involvement in this alleged scheme and is not so conclusory or speculative as to foreclose the Court's discretion in permitting limited discovery at this time. Sur-Tec, Inc. v. CovertTrack Grp., Inc., No. 13-2218-CM, 2014 WL 1304909, at *2 (D. Kan. Apr. 1, 2014) (stating that courts enjoy "wide discretion in determining whether jurisdictional discovery is warranted" but may deny a request for jurisdictional discovery if not adequately supported) (citations omitted). Moreover, as Plaintiff notes in the Response [#47] to the instant Motion [#46], although Defendant Rota has denied the existence of the John/Jane Doe Defendants, see Response to Motion to Remand [#29] at 3-4, Plaintiff has made reasonable arguments as to why the Court should not accept Defendant Rota's denial as conclusive, see Reply to Motion to Remand [#39] at 2-5. It is precisely for this reason that the Court finds that limited discovery into the existence and/or identities of the John/Jane Doe Defendants is appropriate.
Defendant Rota's remaining arguments concern the particular interrogatories to which Rota must respond pursuant to the Court's Order [#45]. See Motion [#46] at 7-10. Specifically, Defendant Rota asserts that the interrogatories undermine Rota's right to anonymity, seek information Rota is not obligated to provide, and were submitted pursuant to an improperly served discovery request. See id.
As was stated during the December 20, 2018 hearing, the Court is sensitive to Defendant Rota's concern that providing certain information requested will violate Rota's asserted First Amendment right to anonymity without a fair hearing on the issue. Therefore, on further consideration of the interrogatories provided, the Order [#45] is amended to require Defendant Rota to respond to Interrogatory Nos. 2 and 4 only. The Order [#45] is further amended to permit Defendant Rota to exclude Rota's true identity from the response provided to Interrogatory No. 2.
However, despite Defendant Rota's contention, the Court is not persuaded that Rota is "protected" from discovery of the information otherwise sought in Interrogatory Nos. 2 and 4. Nor is the Court convinced that Defendant Rota has no obligation to respond to any interrogatory given that Rota, as the party invoking federal jurisdiction, has the burden to establish that subject matter jurisdiction is proper. See Salzer v. SSM Health Care of Okla. Inc., 762 F.3d 1130, 1134 (10th Cir. 2014). The cases Defendant Rota cites in support of this argument do not dictate otherwise, given that those cases do not involve unidentified defendants that were nevertheless served with process prior to removal. See Lincoln Prop. Co. v. Roche, 546 U.S. 81, 84-88 (2005); Brooks v. Purcell, 57 F. App'x 47, 48 (3d Cir. 2002). Finally, although Plaintiff did not file a proper discovery motion seeking leave of Court to propound the interrogatories at issue, Plaintiff did raise such a request as alternative relief in the Motion to Remand [#15] and the Court has discretion to order jurisdictional discovery sua sponte. See Motion to Remand [#15] at 11-13; 25 CP, LLC v. Firstenberg Mach. Co., No. 09-CV-80-PB, 2009 WL 4884483, at *10 (D.N.H. Dec. 8, 2009) (noting that courts "have the authority to order jurisdictional discovery sua sponte") (citing Hatfill v. Foster, 415 F.Supp.2d 353, 356 (S.D.N.Y. 2006); Am. Color Graphics v. Brooks Pharm., Inc., No. 8:05-CV-1512-T-27TBM, 2007 WL 3202748, *4 (M.D. Fla. Oct. 29, 2007)).
Accordingly, for the foregoing reasons,
IT IS HEREBY
IT IS FURTHER
IT IS FURTHER
Pursuant to the above, the parties are advised that the Status Conference regarding Defendant Rota's written responses to Plaintiff's Interrogatories remains set for