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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:19-cv-01231-CMA-KMT
PHILADELPHIA INDEMNITY INSURANCE COMPANY,
Plaintiff,
v.
UNITED STATES OLYMPIC COMMITTEE,
Defendant.
DEFENDANT UNITED STATES OLYMPIC & PARALYMPIC COMMITTEE’S
RESPONSE IN SUPPORT OF MAGISTRATE JUDGE TAFOYA’S
RECOMMENDATION TO DISMISS ACTION
Plaintiff Philadelphia Indemnity Insurance Company (“PIIC”) asserts that this
Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332(c) and by virtue of
the “sue and be sued” clause in the federal charter of Defendant United States Olympic
Committee (“USOPC”). ECF 1 at ¶¶ 4 - 5. These assertions lack merit.
PIIC cannot establish diversity jurisdiction under 28 U.S.C. § 1332(c) because (i)
USOPC is a federally-chartered organization with nationwide operations and (ii)
Congress has not specified a state of which it is a “citizen” for purposes of diversity
jurisdiction. Fed. Nat’l Mortg. Ass’n v. Amerson, No. 19-CV-02361-PAB, 2019 WL
4410009, at *2 (D. Colo. Sept. 16, 2019) (noting “diversity is impossible” under these
circumstances) (citing Bankers Trust Co. v. Tex. & Pac. R.R. Co., 241 U.S. 295 (1916)
(citations omitted)).

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PIIC cannot establish jurisdiction under USOPC’s charter because it confers only
removal jurisdiction—not original jurisdiction—and even then only when elected by
USOPC and in limited circumstances. 36 U.S.C. § 220505(b)(9). This falls short of the
clear and unambiguous language the United States Supreme Court has repeatedly
ruled must be present for federal charters to confer subject matter jurisdiction. See,
e.g., Lightfoot v. Cendant Mortg. Corp., 137 S. Ct. 553, 562 (2017) (a “sue or be sued”
clause is construed narrowly, and must specifically confer subject matter jurisdiction).
PIIC has no effective response to these points. Therefore, USOPC respectfully
suggests that this Court should disregard PIIC’s objections and adopt the
Recommendation as its Order.
I.

PIIC Ignores Authority Fatal To Its Position
PIIC dedicates the majority of its brief to arguments that were fully considered

and soundly rejected in the Recommendation. In doing so, PIIC again ignores authority
directly supporting the Magistrate Judge’s conclusion that subject matter jurisdiction
does not exist here. Specifically:
Diversity Is “Impossible” With Federally-Chartered Organizations: PIIC ignores
precedent from this District that has now been cited no fewer than four times (ECF Nos.
43 at 3; 51 at 2; 56 at 1, 5, 9; 59 at 2-3) recognizing that “diversity is impossible” where,
as here, one party is a federally chartered organization. Fed. Nat’l Mortg. Ass’n, 2019
WL 4410009, at *2 (citations omitted); see also Multibank 2009-1 RES-ADC Venture,
LLC v. CRM Ventures, LLC, No. 10-CV-02001-PAB-CBS, 2010 WL 3632359, at *2 (D.

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Colo. Sept. 10, 2010) (“Federal courts do not have diversity jurisdiction over federallychartered corporations . . . because such corporations have no state citizenship.”).
Jurisdiction Exists Only When Authorized By Statute: PIIC’s assertion that this
Court can find jurisdiction in the absence of any express statutory authority ignores the
“well-established” rule that “statutes conferring jurisdiction upon the federal courts . . .
are to be narrowly construed in light of [federal courts’] constitutional role as limited
tribunals.” Pritchett v. Office Depot., Inc., 420 F.3d 1090, 1094-95 (10th Cir. 2005); see
also Navy Fed. Credit Union v. LTD Fin. Servs., LP, 368 F. Supp. 3d 889, 896 (E.D. Va.
2019) (rejecting the “localization exception” because “diversity jurisdiction cannot be
established except on the terms set forth in § 1332(c).”); see also Shamrock Oil & Gas
Corp. v. Sheets, 313 U.S. 100, 109 (1941) (“Due regard for the rightful independence of
state governments, which should actuate federal courts, requires that they scrupulously
confine their own jurisdiction to the precise limits which the statute has defined.”)
(citations and internal quotation omitted). PIIC’s failure to identify any express statutory
basis for subject matter jurisdiction is fatal to its case.
28 U.S.C. § 1332 Does Not Apply To Federally-Chartered Corporations And
Bankers Trust Remains Good Law: In arguing that the 1958 passage of 28 U.S.C. §
1332(c) rendered Bankers Trust a relic of history and confers diversity jurisdiction here,
PIIC ignores that the Supreme Court has specifically recognized that federally-chartered
organizations do not “fit” within 28 U.S.C. § 1332(c) because “they are not incorporated
by ‘any State.’” Wachovia Bank v. Schmidt, 546 U.S. 303, 306 (2006). Indeed, the
Supreme Court recently affirmed the continued vitality of Bankers Trust when it cited
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that decision with approval in Lightfoot v. Cendant Mortg. Corp., 137 S. Ct. 553, 559
(2017). In short, PIIC simply ignores the fact that “[e]ven after the enactment of §
1332(c), courts have expressly declined to apply [it] to a federally chartered
corporation.” Gladys McCoy Apartments, Ltd. P'ship v. State Farm Fire & Cas. Co., No.
CV 09-981-PK, 2010 WL 1838941, at *3 (D. Or. Mar. 30, 2010), adopted sub nom. No.
CIV. 09-981-PK, 2010 WL 1838937 (D. Or. May 3, 2010) (citations omitted); see also
Navy Fed. Credit Union, 368 F. Supp. 3d at 896 (“the text and structure of Section
1332(c) suggest that the provision applies only to state-chartered corporations,” not
federally-chartered corporations); Burton, 574 F. Supp. at 521(“the amendatory Act of
1958 . . . does not deal with a corporation chartered by an act of Congress.”) (citation
omitted).1
USOPC’s Charter Does Not Affirmatively Confer Subject Matter Jurisdiction:
PIIC also argues that jurisdiction exists because USOPC’s federal charter, the Ted

See, also, Fed. Deposit Ins. Corp. v. La Rambla Shopping Ctr., 791 F.2d 215, 221 (1st
Cir. 1986); JP Morgan Chase Bank, N.A., No. 12-CV-104, 2013 WL 782881, at *1
(D.N.H. Mar. 1, 2013); Auriemma Consulting Grp., Inc. v. Universal Sav. Bank, 367 F.
Supp. 2d 311, 313 (E.D.N.Y. 2005); Parks Heritage Fed. Credit Union v. Fiserv Sols.,
No. 16-CV-7734, 2017 WL 74280, at *4 (S.D.N.Y. Jan. 4, 2017); Little League Baseball.
v. Welsh Pub. Grp., 874 F. Supp. 648, 651 (M.D. Pa. 1995); Lehman Bros. Bank, FSB
v. Frank T. Yoder Mortg., 415 F. Supp. 2d 636, 639 (E.D. Va. 2006); Eagle TX I SPE,
L.L.C. v. Sharif & Munir Enterprises, 602 F. App'x 576, 578 (5th Cir. 2015); Hayward v.
Chase Home Fin., No. 3:10-CV-2463, 2011 WL 2881298, at *3 (N.D. Tex. July 18,
2011); Fed. Nat. Mortg. Ass'n v. LeCrone, 868 F.2d 190, 194 (6th Cir. 1989); Snell v.
Wells Fargo Bank, No. 11-CV-12018, 2012 WL 1048576, at *1 (E.D. Mich. Mar. 28,
2012); Am. Airlines Fed. Credit Union v. Eck, No. 18 C 599, 2018 WL 2332065, at *1
(N.D. Ill. May 23, 2018); Fed. Deposit Ins. Corp. v. Nat'l Sur. Corp., 345 F. Supp. 885,
887 (S.D. Iowa 1972); Hancock Fin. Corp. v. Fed. Sav. & Loan Ins. Corp., 492 F.2d
1325, 1329 (9th Cir. 1974); CU Capital Mkt. Sols., LLC v. Olden Lane Sec., LLC, No.
18-2597-DDC-KGG, 2019 WL 2612940, at *5 (D. Kan. June 26, 2019); Walton v.
Howard Univ., 683 F. Supp. 826, 829 (D.D.C. 1987).
1

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Stevens Olympic and Amateur Sports Act (“ASA”), “essentially creates federal question
jurisdiction” or “appears to contemplate the possibility of diversity of citizenship.” ECF
60 at 10 (emphasis added). This argument ignores Supreme Court precedent
establishing that a federal charter does not create subject matter jurisdiction unless it
does so “specifically.” American Nat'l Red Cross v. S.G., 505 U.S. 247, 255 (1992)
(Red Cross’ charter does not confer subject matter jurisdiction). Any doubt about
whether a federal charter grants subject matter jurisdiction must therefore be resolved
against jurisdiction. Lightfoot v. Cendant Mortg. Corp., 137 S. Ct. 553, 562 (2017)
(Fannie Mae’s charter does not confer subject matter jurisdiction). PIIC’s argument that
the ASA “essentially creates” or “appears to contemplate the possibility of” subject
matter jurisdiction is an admission that the requirements of federal court jurisdiction are
not met.
II.

The Recommendation Correctly Rejects PIIC’s Arguments
A.

Congress Has Not Authorized Subject Matter Jurisdiction

As explained above, the relevant “test” is whether there is a jurisdictional statute
that specifically and unequivocally confers subject matter jurisdiction over this case.
See, e.g., Lightfoot, 137 S. Ct. at 562; Am. Nat'l Red Cross, 505 U.S. at 255; Shamrock
Oil & Gas Corp., 313 U.S. at 109. No such statute exists.
In arguing that 28 U.S.C. § 1332 abrogated Bankers Trust and confers diversity
jurisdiction, PIIC suggests that Congress did not specifically “carve out federallychartered corporations; on the contrary, there is a reference to railroads which are
federally chartered.” ECF 60 at 9. However, railroads were frequently chartered by

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states in the years before § 1332 was enacted, not just the federal government.2
Accordingly, any possible inference that can be drawn from the legislative history falls
short of demonstrating that Congress had a “specific” intent to abrogate Bankers Trust.
See Recommendation at 4-5 (quoting Midlantic Nat. Bank v. New Jersey Dep't of Envtl.
Prot., 474 U.S. 494, 501 (1986) for the “normal rule of statutory construction . . . that if
Congress intends for legislation to change the interpretation of a judicially created
concept, it [must] make[] that intent specific.”).
Congress has, further, repeatedly made clear that it did not intend for § 1332(c)
to abrogate the Bankers Trust rule. Since 1958, Congress has granted state
“citizenship” to, inter alia, farm credit banks, land bank associations, and credit
associations, 12 U.S.C. § 2258, savings associations, 12 U.S.C. § 1464(x), Amtrak, 49
U.S.C. §24301(b), and the Telecommunications Development Fund, 47 U.S.C. §614(b).
See also Wachovia Bank, 546 U.S. at 306 (noting that 28 U.S.C. § 1348 deems national
banks to be “citizens” of the states where they are located). Because Congress has
“confirmed by subsequent congressional enactments,” Amoco Prod. Co. v. S. Ute
Indian Tribe, 526 U.S. 865, 877 (1999), its understanding that § 1332(c) does not
extend diversity jurisdiction to federally-chartered organizations, PIIC improperly urges
this Court to supplant Congress’ intent and render those “subsequently enacted

See Susan Pace Hamill, From Privilege to General Utility: A Continuation of Willard
Hurst's Study of Corporations, 49 Am. U. L. Rev. 81, 154 n.285 (1999) (observing that
556 railroad corporations received state charters between 1904 and 1996, the majority
before 1930).
2

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[citizenship] statute[s]...superfluous,” Navy Fed. Credit Union, 368 F. Supp. 3d at 898 (§
1332(c) does not confer diversity jurisdiction over credit union).
In contrast to the federally-chartered organizations on which Congress has
conferred state “citizenship” for purposes of diversity jurisdiction, Congress has not
specifically conferred Colorado citizenship on USOPC. In other words, Congress
decided to leave USOPC among the many federally-chartered organizations that are
beyond the purview of § 1332(c). See Rutter Group Prac. Guide, Fed. Civ. Proc. Before
Trial (Nat Ed.) Ch. 2C-3 (2019) (identifying American Red Cross, American Legion,
Veterans of Foreign Wars, Little League Baseball, and the Tennessee Valley Authority
as other federally-chartered organizations that are not subject to diversity jurisdiction).
Congress has had ample opportunity to deem USOPC a state “citizen” if it
wanted to. The ASA was not enacted until 20 years after Congress enacted § 1332(c),
and then was amended significantly in 1998. 36 U.S.C. § 220501, et seq. When
Congress specifically considered whether federal courts would have subject matter
jurisdiction over disputes involving USOPC, it decided to confer only removal
jurisdiction—not original jurisdiction—and even then only when elected by USOPC and
in limited circumstances. 36 U.S.C. § 220505(b)(9). This decision reflects that
“Congress specifically recognized that the USO[P]C would not pass citizenship muster
for diversity as set forth in 28 U.S.C. § 1332.” Recommendation at 4-5.
PIIC quibbles with the Recommendation on this point, variously arguing that (i) “it
is equally plausible that if Congress had intended to preclude Colorado citizenship for
the USO[P]C, it could have done so by including language to that effect[;]” (ii) the ASA
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supposedly “contemplate[s] the possibility” of jurisdiction; (iii) it would not be “feasible”
for Congress to keep track of all federally-chartered organizations; and (iv) USOPC’s
charter requires that it appoint an agent for service of process in Colorado. ECF 60 at
10-11. Even if these arguments had any logical appeal, which they do not, they still
would not support jurisdiction, as none shows the existence of a clear and unequivocal
Congressional grant of original subject matter jurisdiction. See, e.g., Lightfoot, 137 S.
Ct. at 562; Am. Nat'l Red Cross, 505 U.S. at 255; Shamrock Oil & Gas Corp., 313 U.S.
at 109.
B.

The “Localization Exception” Does Not Confer Jurisdiction

Noting that “[n]either the United States Supreme Court nor the Tenth Circuit has
specifically approved a localization exception,” Recommendation at 7, and that at least
one other court has refused to apply the “localization exception” on the ground that it
represents an improper judicial expansion of subject matter jurisdiction, (Navy Fed.
Credit Union, LP, 368 F. Supp. 3d at 900), the Magistrate Judge concluded that the
“localization exception” would not apply in any event because USOPC’s operations are
not limited to Colorado, but instead are “truly national in nature.” Recommendation at 8.
PIIC argues this was in error, as it allegedly ignores USOPC’s “deep roots in Colorado
Springs.” ECF 60 at 12. These arguments miss the mark.
As the party with the burden of proof on this issue, Auriemma Consulting Group,
Inc. v Universal Savings Bank, F.A., 367 F. Supp. 2d 311, 314 (E.D.N.Y. 2005)
(proponent bears burden of proving localization), PIIC attempts to show that USOPC
has substantial connections to the state of Colorado. This effort misconstrues the test.
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Whether an organization is “localized” is not determined by its connection to a state, but
rather by the absence of activities outside that state. Compare Arlington Cmty. Fed.
Credit Union v. Berkley Reg'l Ins. Co., 57 F. Supp. 3d 589, 593 (E.D. Va. 2014) (credit
union was “localized” in Virginia because it had no operations outside Virginia) with
Iceland Seafood Corp. v. Nat'l Consumer Co-op. Bank, 285 F. Supp. 2d 719 (E.D. Va.
2003) (bank not “localized” because it was “established” to provide assistance “on a
nationwide basis” and was “authorized to ‘make loans and offer its services throughout
the United States.’”).
In that regard, PIIC’s recitation of USOPC’s contacts with Colorado does nothing
to rebut or detract from the extensive evidence of USOPC’s purpose and activities
beyond Colorado, including:
•

USOPC has been vested by Congress with a nationwide mission and
authority to “establish national goals for amateur athletic activities,”
“coordinate and develop amateur athletic activity in the United States” and
“promote and support amateur athletic activities involving the United
States and foreign nations.” 36 U.S.C. § 220503(1)-(15).

•

The ASA gives USOPC the exclusive right to use and authorize the use of
Olympic-related marks, images and terminology in the United States,
which enables USOPC to generate revenue in support of its national
mission through licensing and broadcasting deals. ECF 56-1 at ¶3.

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•

USOPC has national and international sponsors, including Alibaba
(China), Bridgestone (Japan), Samsung (Korea), Omega (Switzerland),
and Toyota (Japan). ECF 56-1 at ¶3.

•

USOPC has a wide array of contracting partners, ranging from companies
such as NBCUniversal (New York), the long-time holder of broadcasting
rights for Olympics, to specialty manufacturers of Olympic-branded
products, such as Vermont Teddy Bear (Vermont). ECF 56-1 at ¶4.

•

The ASA empowers USOPC to recognize an organization to serve as
each sport’s “national governing body” (“NGB”). 36 U.S.C. § 220521. In
carrying out its mission USOPC works closely with 50 NGBs that
collectively have millions of members and tens of thousands of staff
members and volunteers nationwide. ECF 56-1 at ¶5.

•

USOPC partners with and helps support 11 elite training sites spread
across 9 states, which enable NGBs to provide top-tier training
opportunities to athletes across the country. ECF 56-1 at ¶6.

•

USOPC also operates a facility in Lake Placid, New York, a critical site for
Olympic winter sports training that is situated on 29 acres of land with
athlete housing and dozens of employees, and maintains a separate
business office in New York, where it was headquartered for nearly 80
years, and another in Washington DC. ECF 56-1 at ¶7.

•

USOPC has activities outside the United States, engaging in significant
program services and grant-making in Europe, South America, Caribbean,
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Africa, Asia, and other locations worldwide. ECF 56-1 at ¶8. Further,
when the Olympics or other games it supports are located in foreign
countries, as is common, USOPC has a substantial presence in those
countries over a course of months and years, including sometimes
through foreign subsidiaries such as USOC Hospitality, Servicos,
Comercio, Importacao e Exportacao LTDA, which was formed for the
2016 Summer Olympic Games in Brazil. Id. at ¶¶9-10.
As another District Court previously found when addressing this same issue,
“USO[P]C is authorized to do business and in fact does business throughout the United
States, and thus has national citizenship only.” Burton v. U.S. Olympic Comm., 574 F.
Supp. 517, 522 (C.D. Cal. 1983). PIIC has cited nothing to suggest that USOPC has
become less national or global in nature since then. If anything, the mass-scale
globalization of sports and almost everything else that has taken place during the 35
plus years since Burton was decided would suggest that USOPC has only become
more national and global in nature. There is, accordingly, no merit to PIIC’s suggestion
that USOPC is a “local” business akin to a small bank that serves a single community
(Arlington Cmty. Fed. Credit Union, 57 F. Supp. 3d at 593) or the other types of
businesses that have been found to be “localized.”
C.

PIIC Offers No Reason To Treat USOPC Like A Tribal Corporation

Disregarding the vast body of law recognizing that “diversity is impossible” when
one party is federally chartered, see, e.g., Fed. Nat’l Mortg. Ass’n, 2019 WL 4410009, at
*2, PIIC tries to shoehorn its case into an exception that some courts have developed to
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address the unique circumstances of tribal corporations organized under the Indian
Reorganization Act, 25 U.S.C. § 477. ECF 60 at 6 (citing Gaines v. Ski Apache, 8 F.3d
726, 729 (10th Cir. 1993) (even if tribal corporations could be considered citizens of
particular states, there was no diversity jurisdiction there since the defendant was not a
corporation)).3 USOPC is not a tribal corporation, however, and these cases do not
apply here.
PIIC urges this Court to expand Ski Apache beyond tribal corporations, arguing
that Ski Apache reflects the Tenth Circuit’s “willingness to apply [28 U.S.C. § 1332] to
other types of federally-chartered entities.” ECF 60 at 6-7. But even if Ski Apache can
be read to support the application of § 1332 to tribal corporations, that “line of reasoning
. . . has not been applied outside of the tribal context which, of course, is nuanced by
the unique position tribes and tribal governance hold in United States’ jurisprudence.”
Recommendation at 5.
Neither of the cases cited by PIIC provides any reason to expand the same
doctrine to USOPC. ECF 60 at 6-7. The court in World Fuel Services v. Nambe Pueblo
Development Corporation, which applied Ski Apache to the tribal corporation in that
case, recognized that outside the tribal context the “Supreme Court has held that a
federally chartered corporation is not a citizen of any one state.” World Fuel Servs., 362
F. Supp. 3d at 1085 (citing Bankers' Trust, 36 S.Ct. at 572-73).

3

Given the holding, the proposition for which PIIC cites Ski Apache is dictum, and
therefore not authority on that point. Bates v. Dep't of Corr. of State of Kan., 81 F.3d
1008, 1011 (10th Cir. 1996) (dictum is not authority).
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Lloyd v. Navy Fed. Credit Union, No. 17-CV-1280-BAS-RBB, 2019 WL 2269958
(S.D. Cal. May 28, 2019) did not involve Ski Apache at all. Rather, it recognized that
“courts have uniformly construed § 1332(c) to apply only to companies incorporated
under state law and thus...adhere to the general rule that federally chartered companies
are ineligible for diversity jurisdiction.” Id. at *6 (citation omitted). The Lloyd court was
merely “reticent to depart from its earlier assumption that diversity jurisdiction exists
over this action with respect to Navy Federal” for the administrative purpose of granting
an unopposed motion for approval of a class settlement. Id. Given the context, the lack
of supporting reasoning, the uniformity of the law to the contrary, and that Lloyd is not
binding on this Court, USOPC respectfully submits that Lloyd does not state any rule of
decision that applies here.
III.

CONCLUSION
In sum, PIIC’s stated grounds for subject matter jurisdiction do not withstand

scrutiny. Accordingly, for the foregoing reasons, the USOPC respectfully suggests that
this Court adopt the Recommendation and dismiss this action for lack of subject matter
jurisdiction.

s/ Jose A. Ramirez
Jose A. Ramirez
Catherine C. Crane
Holland & Hart LLP
6380 S Fiddlers Green Circle, Suite 500
Greenwood Village, CO 80111
Phone (303) 290-1605
E-mail: jramirez@hollandhart.com
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E-mail: ccrane@hollandhart.com
Reynold L. Siemens
Jeffrey A. Kiburtz
Covington & Burling LLP
1999 Avenue of the Stars
Los Angeles, CA 90067
Phone (424) 332-4800
Attorneys for Defendant United States Olympic & Paralympic
Committee

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CERTIFICATE OF SERVICE
I hereby certify that the above and foregoing was filed using the Court’s CM/ECF
filing system, which automatically sends notice of filing to all attorneys of record, on
February 19, 2020.
/s/ Jose A. Ramirez
Jose A. Ramirez, Esq.

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