Wagner v. Flora

290 F.2d 508

William WAGNER, Jack A. Tretheway, and Argus Construction Company, a corporation, Appellants, v. Walter W. FLORA, Mildred L. Flora, Flora Construction Company, a corporation, and Naomi Becker, Appellees.

No. 6554.

United States Court of Appeals Tenth Circuit.

April 18, 1961.

Anthony V. Zarlengo, Denver, Colo. (Herbert A. Shatz, Denver, Colo., was with him on the brief), for appellants.

Robert A. Burgess, Casper, Wyo. (William F. Schoeberlein, Denver, Colo., was with him on the brief), for appellees.

Before MURRAH, Chief Judge, PICKETT, Circuit Judge, and KERR, District judge.

PER CURIAM.

1

This appeal is from an order of the District Court dismissing plaintiff-appellants' complaint for lack of federal jurisdiction.

2

The action was brought in the Colorado District Court, alleging both diversity of citizenship and a federal question.

3

It is patently obvious that there is no diversity jurisdiction. The two individual plaintiffs are citizens of Colorado, as are two of the individual defendants. In addition, all parties are apparently indispensable and there is no possibility of realignment. Thus the case falls within the rule which denies diversity jurisdiction when a plaintiff is a citizen of the same state as one of the defendants. See 3 Moore's Federal Practice, 18.07;28 U.S.C. 1332.

4

The plaintiffs further contend that defendants have conspired to deprive them of contractual benefits in violation of 28 U.S.C. 1343, thereby creating a federal question. But that statute contemplates violations of protected civil rights, and does not extend federal jurisdiction to suits for damages growing out of alleged breach of contract. See Walker v. Bank of America, 9 Cir., 268 F.2d 16 .

5

The order of the trial court is therefore affirmed.