United States District Court, D. Colorado
ORDER TO SHOW CAUSE
A. BRIMMER United States District Judge
Court takes up this matter sua sponte on defendant
Miru Logistics, Inc.'s Notice of Removal [Docket No. 1].
Defendant states that the Court has subject matter
jurisdiction over this lawsuit pursuant to 28 U.S.C. §
1332. Docket No. 1 at 6, ¶ 24.
every case and at every stage of the proceeding, a federal
court must satisfy itself as to its own jurisdiction, even if
doing so requires sua sponte action. Citizens
Concerned for Separation of Church & State v. City &
County of Denver, 628 F.2d 1289, 1297 (10th Cir. 1980).
Absent an assurance that jurisdiction exists, a court may not
proceed in a case. See Cunningham v. BHP Petroleum Great
Britain PLC, 427 F.3d 1238, 1245 (10th Cir. 2005).
Courts are well-advised to raise the issue of jurisdiction on
their own, regardless of parties' apparent acquiescence.
First, it is the Court's duty to do so. See Laughlin
v. Kmart Corp., 50 F.3d 871, 873 (10th Cir. 1995),
abrogated on other grounds by Dart Cherokee Basin
Operating Co., LLC v. Ow ens, 135 S.Ct. 547 (2014)
(“[I]f the parties fail to raise the question of the
existence of jurisdiction, the federal court has the duty to
raise and resolve the matter.”). Second,
“[s]ubject matter jurisdiction cannot be conferred or
waived by consent, estoppel, or failure to challenge
jurisdiction early in the proceedings.” Id.
Finally, delay in addressing the issue only compounds the
problem if it turns out that, despite much time and expense
having been dedicated to a case, a lack of jurisdiction
causes it to be dismissed or remanded regardless of the stage
it has reached. See U.S. Fire Ins. Co. v. Pinkard Constr.
Co., No. 09-cv-00491-PAB-MJW, 2009 WL 2338116, at *3 (D.
Colo. July 28, 2009).
well established that “[t]he party invoking federal
jurisdiction bears the burden of establishing such
jurisdiction as a threshold matter.” Radil v.
Sanborn W. Camps, Inc., 384 F.3d 1220, 1224 (10th Cir.
2004). Defendant Miru Logistics, Inc. (“Miru”)
invokes 28 U.S.C. § 1332 as the basis for this
Court's diversity jurisdiction. Docket No. 1 at 6, ¶
24. Section 1332(a)(1) states: “The district courts
shall have original jurisdiction of all civil actions where
the matter in controversy exceeds the sum or value of $75,
000, exclusive of interest and costs, and is between 
citizens of different States.” The facts as presently
averred, however, do not provide sufficient information
regarding the citizenship of plaintiff, Vanik Ohanessian,
Eddie Wadsworth, or Interstate Distributor Co.
dispute in this case relates to a motor vehicle accident.
See Docket No. 1-1 at 2-4, ¶¶ 8-29. The
notice of removal states that Mr. Ohanessian “was a
resident of the State of California at the time of the
collision” and that Mr. Wadsworth “was a resident
of Denver, Colorado at the time of the collision.”
Docket No. 1 at 3, ¶¶ 13-14. Domicile, not
residency, is determinative of citizenship. See Kramer v.
Sears Roebuck & Co., 1997 WL 141175, *3 (10th Cir.
Mar. 28, 1997) (unpublished). In addition, “diversity
jurisdiction is to be determined at the time that the lawsuit
is commenced and again at the time of removal.”
Nature's Sunshine Prod., Inc. v. De La Mora,
2005 WL 6956457, at *1 (D. Utah May 2, 2005) (citations
omitted). Because the notice of removal describes the
individual defendants' places of residence at the time of
the accident, instead of their domiciles at the time of
filing and removal, the information provided does not allow
the Court to determine whether there is diversity of
citizenship in this case.
notice of removal states that “[u]pon information and
belief Plaintiff is a resident of Henderson, Nevada and was
so both at the time of filing of the state court action and
at the time of filing of the instant notice.” Docket
No. 1 at 4, ¶ 17. Similarly, to describe the citizenship
of defendant Interstate Distributor Co., the notice of
removal cites plaintiff's amended complaint,
id., ¶ 16, which provides that “on
information and belief, Defendant Interstate Distributor Co.
is a Washington corporation authorized to operate on the
roadways of the United States with a principal office street
address in Washington.” Docket No. 1-1 at 2, ¶ 7.
The removing party has the burden of demonstrating the
Court's jurisdiction. Jurisdictional allegations made on
“information and belief” do not satisfy that
obligation. Villanuevo v. Lowe's Home Centers,
LLC, No. 16-cv-02613-PAB-KLM, 2016 WL 7320393, at *2 (D.
Colo. Dec. 16, 2016) (citing Fifth Third Bank v.
Flatrock 3, LLC, 2010 WL 2998305, at *3 (D.N.J. July 21,
2010)); Pinkard Constr. Co., 2009 WL 2338116, at *3.
addition to the aforementioned defects, it is unclear from
the notice of removal whether “all defendants who have
been properly joined and served  join in or consent to the
removal of the action.” 28 U.S.C. § 1446(b)(2)(A).
The notice of removal states that defendant Ohanessian has
not been served, but that he will be represented by counsel
for defendant Miru and that he consents to the removal of
this action. Docket No. 1 at 3, ¶ 10. The notice of
removal does not state whether the other defendants in this
action have been served or whether they consent. Defendant
Miru has not yet filed the docket sheet from the state court
action, which may allow the Court to determine whether the
consent of the other defendants is necessary. See
D.C.COLO.LCivR 81.1(b) (“No later than 14 days after
the filing of the notice of removal, the removing party shall
file a current docket sheet.”). It is defendant
Miru's burden to demonstrate that removal is proper. It
has not done so at this time.
foregoing reasons, it is ORDERED that, on or before 5:00 p.m.
on March 20, 2017, defendant Miru Logistics, Inc. shall show
cause why this case should not be dismissed due ...