                                                                           F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         February 13, 2006
                            FOR THE TENTH CIRCUIT
                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court

    RANDALL J. CARPENTER,

          Plaintiff-Appellant,

    v.                                                    No. 05-8030
                                                   (D.C. No. 04-CV-337-ABJ)
    TOM BROWN, INC, a Delaware                             (D. Wyo.)
    corporation,

          Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before TACHA and PORFILIO, Circuit Judges, and JOHNSON,
District Judge. **


         Randall J. Carpenter appeals the Fed. R. Civ. P. 12(b)(1) dismissal of his

lawsuit for negligence against Tom Brown, Inc.. Because our decision in Stuart

v. Colorado Interstate Gas Company, 271 F.3d 1221 (10th 2001), dictates the

conclusion here, we affirm.




*
      This order and judgment is not binding precedent, except under the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.
**
      The Honorable William P. Johnson, District Judge, United States District
Court of New Mexico, sitting by designation.
      With both parties fully versed in the facts, we recite only those

Mr. Carpenter asserts distinguish his case from Stuart. In the spring of 2001,

Cannon Oil & Gas Well Service, Inc., a Wyoming corporation, hired

Mr. Carpenter as a floor hand. From its Rock Springs, Wyoming office which

issued his paychecks, Cannon later dispatched Mr. Carpenter and two other

employees to perform a workover operation on an oil well owned by Tom Brown,

Inc., located in Rio Blanco County, near Meeker, Colorado. During the operation,

a rubber gasket shot up the drilling pipe, struck Mr. Carpenter’s right arm, and

amputated it just below the elbow. Mr. Carpenter was transported to Denver,

where his injury was treated. Cannon’s Wyoming worker’s compensation

insurance reimbursed the cost of his medical care.

      On the basis of these facts, then, aside from the place of his accident and

trauma treatment, Mr. Carpenter asserts all of the relevant facts circumscribing

his employment history and grounding his lawsuit reside in Wyoming. Only the

fortuity of his employer’s subcontracting work in Colorado along with his

three-day presence at the job site interrupted his otherwise continuous Wyoming

employment history.

      Invoking diversity jurisdiction, Mr. Carpenter filed his complaint alleging

Brown’s negligence and seeking monetary damages in the United States District

Court for the District of Wyoming. Brown moved to dismiss the complaint on the


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ground that under Colorado law which, it claimed, governed the action, Brown is

a statutory employer and immune from suit. Brown relied upon Colo. Rev. Stat.

§ 8-41-401(1)(a), (b), which, in part, states:

      (1)(a) Any person, company, or corporation operating or engaged in
      or conducting any business by ... contracting out any part or all of the
      work thereof to any lessee, sublessee, contractor, or subcontractor,
      irrespective of the number of employees engaged in such work, shall
      be construed to be an employer as defined in articles 40 to 47 of
      this title and shall be liable as provided in said articles to pay
      compensation for injury or death resulting therefrom to said lessees,
      sublessees, contractors, and subcontractors and their employees or
      employees' dependents, except as otherwise provided in subsection
      (3) of this section.
                                         ***
      (b) The employer, before commencing said work, shall insure and
      keep insured against all liability as provided in said articles, and
      such ... contractor, or subcontractor, as well as any employee thereof,
      shall be deemed employees as defined in said articles....

Colo. Rev. Stat. § 8-41-401(1)(a), (b) (2001) (emphasis added).

      Mr. Carpenter responded, first, that under Wyoming statutes and their

interpretation by the Wyoming Supreme Court in Wessel v. Mapco, Inc., 752 P.2d

1363, 1370-71 (Wyo. 1988), his employment was “principally localized” in

Wyoming, displacing application of Colorado law. Second, were Colorado law

applied, Brown failed to satisfy its prerequisites to immunity. Third,

Mr. Carpenter asserted Wyoming’s strong public policy in the broad area of

protecting its workers and the workers compensation system overrode any interest

Colorado might have in the litigation.


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      The district court granted the motion, however, concluding Colorado’s

exclusive remedy immunizing Brown from suit ousted its subject matter

jurisdiction. Recognizing the action’s congruity with Stuart, the district court

nonetheless noted its decision:

      is not simply based on an arithmetic calculation to determine the
      rights and responsibilities of the parties. Such an analysis would
      ignore the important goals and [policies] underlying both States’
      worker’s compensation schemes. The Court is uncomfortable with
      an analysis that seems to reward fortuitous, or strategic, connections
      between plaintiffs and defendants that inject uncertainty into the
      worker’s compensation equation - uncertainty that the worker’s
      compensation regimes were supposed to eliminate.

      We review the dismissal for lack of subject matter jurisdiction under

Fed. R. Civ. Pro. 12(b)(1) de novo and “review findings of jurisdictional facts for

clear error.” Stuart, 271 F.3d at 1225 (citation omitted); see also, Cooper v.

American Auto. Ins. Co., 978 F.2d 602, 611 n. 7 (10th Cir. 1992). Like Stuart,

that review here is predicated on the choice of law question. Although

Mr. Carpenter would confine Stuart’s analysis to its precise facts, the distinctions

he draws do not alter or limit Stuart’s reach here.

      Mr. Stuart, a Wyoming resident like Mr. Carpenter and an employee of a

Wyoming construction company, went directly to the Colorado facility where his

employer’s project superintendent hired him for the Colorado work. Stuart,

271 F.3d at 1224. Mr. Stuart’s paychecks, like those of Mr. Carpenter, were



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issued from his employer’s Wyoming office, and Mr. Stuart received benefits, as

did Mr. Carpenter, from Wyoming under its worker’s compensation fund. Id.

      The Stuart court thoroughly examined Colorado and Wyoming

constitutional and statutory law as well as case law from other jurisdictions. Its

analysis further embraced a discussion of whether Wyoming as a matter of comity

would recognize Colorado’s exclusive remedy and concluded that result would

not violate Wyoming public policy. Id. at 1227. Finding neither a factual nor

legal basis to alter that jurisdictional determination here, we agree with the

district court and are bound to AFFIRM.


                                                     Entered for the Court



                                                     John C. Porfilio
                                                     Circuit Judge




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