Xol Rax, et al. v. Big D Builders, Inc., et al.

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
NANCY XOL RAX, individually, and
on behalf of her minor daughter DS,
ZULEYMA R. LOPEZ on behalf of
her minor son JS, GLORIA TZI, and
PEDRO SONTAY, JUAN SONTAY,
and MARTHA SONTAY, as
individual heirs of MARIO SONTAY,
And
INGRID SUSANA BOTZOC TZI,
DOROTEA OCH, EMILIANO COC
CHUB, and EMILIANO COC OCH,
as individual heirs of MARIANO
COC,
Plaintiffs,
v.
BIG D BUILDERS, INC.; STEEL
BUILDING SYSTEMS, LLC;
INLAND CRANE, INC.; WALKER
STRUCTURAL ENGINEERING,
P.C.; SPECK STEEL, LLC; NCI
GROUP, INC. d/b/a METAL
BUILDING COMPONENTS,
Defendants.
Case No. 1:24-cv-00319-BLW
MEMORANDUM DECISION
AND ORDER
INTRODUCTION
There are two motions before the Court: (1) Defendant Steel Building’s
Motion to Dismiss and (2) Plaintiff’s Motion to Strike the Declaration of Steel
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Building’s Counsel. For the reasons explained below, the Court will deny the
Motion to Dismiss and find the Motion to Strike moot.
BACKGROUND
This case stems from an airplane hangar collapse and the deaths of two
men—Mario Sontay Tsi and Mariano Coc Och—who Plaintiffs claim were
working on the hangar at the time of incident. Second Amended Compl. ¶ 1,
Dkt. 36 at 2. Plaintiffs, as heirs and representatives of heirs of the deceased men,
sued several companies, including Defendant Steel Building Systems, LLC, who
designed and engineered the hangar. Second Amended Compl. ¶ 2, 5-10, Dkt. 36
at 2-3. Two of the Plaintiffs are Nancy Xol Rax and Ingrid Susana Botzoc Tzi, the
widowed wives of Mario and Mariano, respectively. Second Amended Compl. ¶ 18,
26, Dkt. 36 at 4-5.
Plaintiffs sued in federal court based on foreign diversity jurisdiction, as
they claimed to be Guatemalan and Salvadoran citizens suing companies based in
the United States. Second Amended Compl. ¶ 37, Dkt. 36 at 6; see 28 U.S.C.
§ 1332(a)(2). Nancy and Ingrid provided affidavits in which they each attested to
being a Guatemalan citizen domiciled in Guatemala. Nancy Affid. ¶ 2, Dkt. 87-1
at 10; Ingrid Affid. ¶ 2, Dkt. 87-1 at 19. They each also claimed they were born in
Guatemala and never lived outside of Guatemala. Nancy Affid. ¶ 1, 3, Dkt. 87-1
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at 10; Ingrid Affid. ¶ 1, 3, Dkt. 87-1 at 19. And each of them stated they had never
entered the United States or applied for or obtained a U.S. visa. Nancy Affid. ¶ 4,
Dkt. 87-1 at 10; Ingrid Affid. ¶ 4, Dkt. 87-1 at 19.
Steel Building then filed a motion to dismiss Plaintiffs’ suit under Rule
12(b)(1) for lack of subject matter jurisdiction. Steel Building’s Mot. To Dismiss,
Dkt. 82. Along with the motion, Steel Building filed a declaration from its counsel.
Thielbahr Decl., Dkt. 84. In it, counsel stated that one of the other Defendants in
this case, Big D, provided employment records for Mario and Mariano to each of
the parties. Thielbahr Decl. at ¶ 11, Dkt. 84 at 3; see Thielbahr Decl. Exs. E & F,
Dkts. 84-5, 84-6. According to Steel Building, those documents contained scanned
copies of permanent resident cards for both Mario and Mariano. Steel Building’s
Memo. for Mot. To Dismiss at 4-5, Dkt. 83 at 4-5.
Steel Building further noted that the permanent resident category listed on
Mario’s card was “IR6,” and on Mariano’s the category was “IR1.” Steel
Building’s Memo. for Mot. To Dismiss at 7, Dkt. 83 at 7; see Dkt. 84-5 at 7;
Dkt. 84-6 at 4. It added that the meaning of these codes is available on the U.S.
Citizenship and Immigration Services’ website, which shows for both “IR1” and
“IR6” that the permanent resident was “admitted or adjusted as a spouse of a U.S.
citizen married more than 2 years at the time of admission.” Steel Building’s
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Memo. for Mot. To Dismiss at 7, Dkt. 83 at 7; see USCIS, Chapter 2 – Lawful
Permanent Resident Admission for Naturalization, https://www.uscis.gov/policy-
manual/volume-12-part-d-chapter-2. Steel Building argued that the permanent
resident cards thus revealed that Nancy and Ingrid were U.S. citizens and so
Plaintiffs had not established a factual basis for foreign diversity jurisdiction.1 Steel
Building’s Memo. for Mot. To Dismiss at 7, Dkt. 83 at 7.
Plaintiffs responded to Steel Building’s Motion to Dismiss by arguing that
neither Nancy nor Ingrid were U.S. citizens. Plaintiffs’ Response to Mot. to Dism.
at 3-4, Dkt. 87 at 3-4. In support, Plaintiffs filed numerous documents, including
two reports and a brief professional profile from William Fong, Esq., who
Plaintiffs described as “a recognized expert in U.S. Citizenship and Immigration
Services . . . security documents.” Plaintiffs’ Response to Mot. to Dism. at 3, Dkt.
87 at 3; Plaintiffs’ Response to Mot. to Dism. Ex. E, Dkt. 87-1 at 27-35. According
to his profile, Mr. Fong was the managing partner of Fong Ilaga, “a firm
specializing in corporate immigration law,” and a professor at Thurgood Marshall
School of Law. Plaintiffs’ Response to Mot. to Dism. Ex. E, Dkt. 87-1 at 35. Listed
1 Steel Building’s argument is based on the permanent resident cards and their content,
not on any of the other employment documents produced by Big D, which presumably are all
derivative of the information on the permanent resident cards. Steel Building’s Memo. for Mot.
To Dismiss, Dkt. 83 at 7.
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under his areas of competency in immigration law are “employment-based &
family-based permanent residence.” Plaintiffs’ Response to Mot. to Dism. Ex. E,
Dkt. 87-1 at 35.
In his reports, Mr. Fong explained that he reviewed the scanned copies of
both Mario’s and Mariano’s permanent resident cards and noticed several
“anomalies” on each card that were “inconsistent” with what he would expect to
observe on validly issued permanent resident cards. Plaintiffs’ Response to Mot. to
Dism. Ex. E, Dkt. 87-1 at 27, 31. Addressing Mario’s card first, Mr. Fong listed
four irregularities. Plaintiffs’ Response to Mot. to Dism. Ex. E, Dkt. 87-1 at 27-28.
First, he pointed out that the name on the card, “Mario Rigoberto Sontay Tzi” did
not match the name contained in the wavy line above the picture on the front of the
card. Plaintiffs’ Response to Mot. to Dism. Ex. E, Dkt. 87-1 at 27. Mr. Fong
observed that the name in that wavy line appeared to be “Martinez Lopez Daniel.”
Plaintiffs’ Response to Mot. to Dism. Ex. E, Dkt. 87-1 at 27.
Second, Mr. Fong noted that the picture on the front of the card was “not a
standard USCIS digitized photograph.” Plaintiffs’ Response to Mot. to Dism.
Ex. E, Dkt. 87-1 at 27. He stated that USCIS requires that such a photograph be
“centered” with the individual “facing forward” and their “full face visible,”
including their ears. Plaintiffs’ Response to Mot. to Dism. Ex. E, Dkt. 87-1 at 27.
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He observed that the photograph on Mario’s card did not show both of the
individual’s ears and did not appear to be a full-frontal image. Plaintiffs’ Response
to Mot. to Dism. Ex. E, Dkt. 87-1 at 27.
Third, Mr. Fong noted that the typeface of the headings on the front of the
card was inconsistent with each other. Plaintiffs’ Response to Mot. to Dism. Ex. E,
Dkt. 87-1 at 28. He explained that the heading “Category” was in bold unlike the
other headings. Plaintiffs’ Response to Mot. to Dism. Ex. E, Dkt. 87-1 at 28.
Fourth, Mr. Fong identified two anomalies on the back of the card. Plaintiffs’
Response to Mot. to Dism. Ex. E, Dkt. 87-1 at 28. First, he noted the line indicating
the revision date for the edition of the card was in bold typeface, whereas the
notation “Form I-551” was not bolded. Plaintiffs’ Response to Mot. to Dism. Ex. E,
Dkt. 87-1 at 28. Second, he observed that the revision date listed was “02-2016,”
despite the issued-on date on the front of the card reading “05/07/15,” which was
prior to the card’s edition date. Plaintiffs’ Response to Mot. to Dism. Ex. E, Dkt.
87-1 at 28.
As for Mariano’s card, Mr. Fong noted eight anomalies, which fit into two
categories. Plaintiffs’ Response to Mot. to Dism. Ex. E, Dkt. 87-1 at 31-32. The
first category included inconsistencies in the format of the card. Plaintiffs’
Response to Mot. to Dism. Ex. E, Dkt. 87-1 at 31-32. Mr. Fong stated that the
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format of the card did not reflect changes in the format that were implemented
before the date the card was issued. Plaintiffs’ Response to Mot. to Dism. Ex. E,
Dkt. 87-1 at 31-32. He then identified four aspects of the card that were
inconsistent with the new format: (1) the background, (2) the signature line, (3) the
lack of a small photograph on the back side of the card matching the one from the
front, and (4) the “magnetic/optical data strip.” Plaintiffs’ Response to Mot. to
Dism. Ex. E, Dkt. 87-1 at 31-32.
The second category contained four anomalies identified by Mr. Fong that
he did not explicitly link to the new format. Plaintiffs’ Response to Mot. to Dism.
Ex. E, Dkt. 87-1 at 31-32. First, he noted that the birth year listed on the card did
not overlap the photograph as much as he would have expected to observe.
Plaintiffs’ Response to Mot. to Dism. Ex. E, Dkt. 87-1 at 31. Second, he
characterized the photograph as non-standard because it contained a noticeable
shadow over the lower portion of the individual’s face. Plaintiffs’ Response to Mot.
to Dism. Ex. E, Dkt. 87-1 at 31. Third, he stated that the expiration date on the card
was inconsistent with standard practice, as the “vast majority” of cards reflect a
full ten-year period from issuance to expiration but this card’s expiration date was
eighteen days short of ten years. Plaintiffs’ Response to Mot. to Dism. Ex. E, Dkt.
87-1 at 32. Fourth, Mr. Fong pointed out that the back of the card appeared to be
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missing the typical “Form I-551” notation and the corresponding revision date.
Plaintiffs’ Response to Mot. to Dism. Ex. E, Dkt. 87-1 at 32. For each card, Mr.
Fong concluded: “[b]ased on my review of the scanned I-551, the observed
anomalies and my experience with USCIS document[s], it is my professional
opinion that this ‘I-551’ is a document purporting to be an officially issued Form I-
551.” Plaintiffs’ Response to Mot. to Dism. Ex. E, Dkt. 87-1 at 28; see Plaintiffs’
Response to Mot. to Dism. Ex. E, Dkt. 87-1 at 32.
Plaintiffs also filed a Motion to Strike Steel Building’s declaration of
counsel. Motion to Strike, Dkt. 88. In this motion, Plaintiffs argued that assertions
of counsel in the declaration were not based on personal knowledge, that the
declaration contained inadmissible expert testimony from a lay witness, and that
the permanent resident cards referenced in the declaration were inadmissible
because they contained hearsay evidence and because they were counterfeit.
Motion to Strike, Dkt. 88.
In Steel Building’s reply in support of its Motion to Dismiss, it argued that
although it submitted the permanent resident cards through a declaration of
counsel, that declaration did “not provide any testimony regarding the Personnel
Documents, the immigration documents contained therein, or the laws and policies
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analyzing the same.” 2 Steel Building’s Reply, Dkt. 89 at 6. Steel Building asserted
that it moved to dismiss based not on the opinions of counsel but rather on the
employment documents, particularly the permanent resident cards and the codes on
those cards, the meaning of which was available from public information provided
by the government. Steel Building’s Reply, Dkt. 89 at 6-7. Steel Building further
argued that its counsel had personal knowledge of how she came into possession of
the employment documents, and that it was this personal knowledge, not any
knowledge about the information contained within the documents that counsel
sought to convey through the declaration. Steel Building’s Reply, Dkt. 89 at 6.
Steel Building also claimed that counsel did not provide expert witness testimony
in the declaration, as “no such immigration related testimony” appeared in that
filing and no “opinions as to the USCIS documents” existed within either the
declaration or the Motion to Dismiss. Steel Building’s Reply, Dkt. 89 at 7.
Following Steel Building’s reply, Plaintiffs filed amended affidavits from
Nancy and Ingrid in which they each stated that they were citizens of Guatemala
and not U.S. citizens. Nancy Suppl. Affid. ¶ 6, Dkt. 100 at 2; Ingrid Suppl. Affid.
¶ 6, Dkt. 100-1 at 2.
2 Steel Building also filed a response to Plaintiffs’ Motion to Strike, the content of which
was nearly identical to its reply. See Steel Building’s Memo. In Opp. to Motion to Strike, Dkt. 93.
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LEGAL STANDARD
Federal courts have limited subject matter jurisdiction, and the plaintiff bears
the burden to prove that it exists. Kokkonen v. Guardian Life Ins. Co. of Am., 511
U.S. 375, 377 (1994). Where, as here, a plaintiff invokes foreign diversity
jurisdiction, it must demonstrate complete diversity between the parties, meaning
that “each plaintiff must be diverse from each defendant.” Lee v. Am. Nat. Ins. Co.,
260 F.3d 997, 1004 (9th Cir. 2001). That is, a U.S. citizen cannot be on both sides
of the case. See Mutuelles Unies v. Kroll & Linstrom, 957 F.2d 707, 711 (9th Cir.
1992). This is true regardless of a party’s foreign citizenship or foreign domicile.
See Coury v. Prot, 85 F.3d 244, 250 (5th Cir. 1996) (“an American living abroad is
not by virtue of that domicile a citizen or subject of the foreign state in which he
resides so as to permit invocation of the alienage jurisdiction prescribed in 28
U.S.C. § 1332(a)(2)”).
A motion to dismiss under Federal Rules of Civil Procedure 12(b)(1) for
lack of subject matter jurisdiction may be either facial or factual. See White v. Lee,
227 F.3d 1214, 1242 (9th Cir. 2000). A “factual” challenge, such as Steel
Building’s here, contests the truth of plaintiff’s factual allegations by introducing
evidence outside the pleadings. Safe Air for Everyone v. Meyer, 373 F.3d 1035,
1039 (9th Cir. 2004). In response, a plaintiff must support its assertion of
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jurisdiction with “competent proof” under the same evidentiary standard that
governs in the summary judgment context. Hertz Corp. v. Friend, 559 U.S. 77, 96-
97 (2010); see Fed. R. Civ. P. 56(c).
Generally, if the existence of jurisdiction turns on disputed factual issues, the
district court may resolve those factual disputes itself. See Safe Air for Everyone,
373 F.3d at 1039. In so doing, the Court is not restricted to the face of the
pleadings, but may review any evidence, such as declarations and testimony, to
resolve any factual disputes concerning the existence of jurisdiction. See McCarthy
v. United States, 850 F.2d 558, 560 (9th Cir. 1988).
ANALYSIS
The Court will first address Steel Building’s Motion to Dismiss and assume,
without finding, that it can consider the evidence Plaintiffs seek to strike, namely
the declaration and the scanned copies of the permanent resident cards. Because
the Court finds, as explained below, that Plaintiffs have met their burden to show
the requirements are met for foreign diversity jurisdiction, the Court denies the
Motion to Dismiss and determines that the Motion to Strike is moot.
In support of their assertion that Nancy and Ingrid are foreign citizens,
Plaintiffs submitted affidavits from both women in which they each claimed to be
citizens of Guatemala and not citizens of the United States. Nancy Suppl. Affid. ¶ 6,
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Dkt. 100 at 2; Ingrid Suppl. Affid. ¶ 6, Dkt. 100-1 at 2. The only evidence that
potentially undermines the veracity of these statements are the copies of Mario and
Mariano’s permanent resident cards. The codes on these cards show that each was
issued based on the applicant’s marriage to a U.S. citizen, which seems to indicate
that Mario and Mariano’s wives—Nancy and Ingrid—are U.S. citizens.
See Thielbahr Decl. Exs. E & F, Dkts. 84-5, 84-6; USCIS, Chapter 2 – Lawful
Permanent Resident Admission for Naturalization, https://www.uscis.gov/policy-
manual/volume-12-part-d-chapter-2. However, the Court finds Mr. Fong’s analysis
of these cards to be credible and thus affords the cards little evidentiary weight. 3
See Safe Air for Everyone, 373 F.3d at 1039-40 (noting the Court may resolve
factual disputes about the existence of jurisdiction).
Mr. Fong’s opinion that neither card was issued by the government is
persuasive. He identified several aspects of each card and logically explained why
he believed those aspects were inconsistent with how a permanent resident card
should appear. See Plaintiffs’ Response to Mot. to Dism. Ex. E, Dkt. 87-1 at 27-28,
31-32. As for his report on Mario’s card, Mr. Fong’s observation that another
person’s name appeared on the wavy-line security feature of the card is a strong
3 Steel Building does not assert that the Court cannot or should not consider Mr. Fong’s
reports.
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indication that the card is not genuine. Plaintiffs’ Response to Mot. to Dism. Ex. E,
Dkt. 87-1 at 27. Mr. Fong further supported this conclusion by pointing out that the
typeface of the headings on the card was inconsistent, that the photograph on the
card did not comply with standard conventions because it was not a full-frontal
view, and that the revision date on the back of the card was later in time than the
date the card was issued. Plaintiffs’ Response to Mot. to Dism. Ex. E, Dkt. 87-1
at 27-28. These observations each support the conclusion that the card is not
genuine and taking them all into consideration makes that conclusion nearly
unavoidable.
Mr. Fong’s report on Mariano’s card is similarly persuasive. He stated that
the card was issued several months after the government implemented a revised
format for such cards but that the format of Mariano’s card was inconsistent with
the new format. Plaintiffs’ Response to Mot. to Dism. Ex. E, Dkt. 87-1 at 31-32.
Rather than state that this definitively showed the card to be counterfeit, Mr. Fong
explained that it was possible that a genuine card issued at the same time as
Mariano’s could have been printed on old stock and thus reflected the old format.
Plaintiffs’ Response to Mot. to Dism. Ex. E, Dkt. 87-1 at 31. This candor lends Mr.
Fong’s report credibility.
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In addition, Mr. Fong identified several other anomalies on Mariano’s card
that were not contingent on the change in format. Plaintiffs’ Response to Mot. to
Dism. Ex. E, Dkt. 87-1 at 31-32. These included the birth year listed on the
document not overlapping the picture to a typical degree, the shadow on the lower
part of the face of the individual in the picture, the back of the card missing
information, and the inconsistency between the normal ten-year validity period for
a permanent resident card and the period on this card, which was eighteen days
short of ten years. Plaintiffs’ Response to Mot. to Dism. Ex. E, Dkt. 87-1 at 31-32.
These factors provide strong evidence that the card is not genuine, especially when
considered all together.
Moreover, Steel Building does not offer an opinion countering that of Mr.
Fong’s, nor does it attempt to undermine the points he has made or the opinions he
has offered in any other way. Steel Building’s Mot. to Dismiss, Dkt. 82; Steel
Building’s Reply, Dkt. 89. In fact, Steel Building concedes that it has not offered
any expert testimony or any testimony relevant to the interpretation of immigration
documents or security features of such documents. See Steel Building’s Reply, Dkt.
89 at 7. The Court therefore gives the copies of the permanent resident cards very
little evidentiary weight.
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As a result, Nancy and Ingrid’s statements that they are Guatemalan citizens
and not citizens of the United States are left essentially uncontested. The Court
therefore finds that Plaintiffs have proven by a preponderance of the evidence that
Nancy and Ingrid are foreign citizens for purposes of foreign diversity jurisdiction
and denies Steel Building’s Motion to Dismiss. Because the Court denies the
Motion to Dismiss even after considering the evidence Plaintiffs sought to strike,
the Motion to Strike is moot.
ORDER
IT IS ORDERED that:
1. Defendant Steel Building Systems, LLC’s Motion to Dismiss (Dkt. 82) is
DENIED.
2. Plaintiffs’ Motion to Strike (Dkt. 88) is MOOT.
DATED: January 2, 2026
_________________________
B. Lynn Winmill
U.S. District Court Judge
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