United States District Court, D. Colorado
FIREMAN'S FUND INSURANCE COMPANY, a California corporation, Plaintiff,
OBERNDORF PROPERTIES, a Colorado general partnership, OBERNDORF PROPERTIES LTD., a Colorado limited liability company, STEELE STREET LIMITED II, a Colorado limited partnership, Defendants.
ORDER TO SHOW CAUSE
A. BRIMMER, United States District Judge
Court takes up this matter sua sponte on the
complaint [Docket No. 1] filed by plaintiff Fireman's
Fund Insurance Company (“Fireman's Fund”).
Fireman's Fund states that the Court has subject matter
jurisdiction over this lawsuit pursuant to 28 U.S.C. §
1332. Docket No. 1 at 2, ¶ 5.
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. Tuck v.
United Servs. Auto. Ass'n, 859 F.2d 842, 844 (10th
Cir.1988). Second, regarding subject matter jurisdiction,
“the consent of the parties is irrelevant, principles
of estoppel do not apply, and a party does not waive the
requirement by failing to challenge jurisdiction.”
Ins. Corp. of Ireland v. Compagnie des Bauxites de
Guinee, 456 U.S. 694, 702 (1982) (internal citations
omitted). 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). Fireman's Fund invokes 28 U.S.C. § 1332 as
the basis for this Court's diversity jurisdiction. Docket
No. 1 at 2, ¶ 5. 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 defendants.
complaint alleges that “Defendant Oberndorf Properties
is a Colorado general partnership. Defendant Oberndorf
Properties, Ltd. is a Colorado limited liability company.
Steele Street Limited II is a Colorado limited
partnership.” Docket No. 1 at 2, ¶ 3. The
complaint also alleges “[o]n information and
belief” that “all of the partners or members of
[defendants] are citizens of Colorado.” Id.,
¶ 4. In their answer, defendants deny that all their
partners or members are citizens of Colorado. Docket No. 11
at 3, ¶ 4.
for diversity purposes, “a corporation shall be deemed
to be a citizen of every State and foreign state by which it
has been incorporated and of the State or foreign state where
it has its principal place of business, ” 28 U.S.C.
§ 1332(c)(1); see Carden v. Arkoma Assocs., 494
U.S. 185, 196 (1990),  these considerations are irrelevant to the
determination of the citizenship of an LLC. See Siloam
Springs Hotel, L.L.C. v. Century Sur. Co., 781 F.3d
1233, 1237-38 (10th Cir. 2015) (“[I]n determining the
citizenship of an unincorporated association for purposes of
diversity, federal courts must include all the entities'
when an entity consists of multiple tiers of ownership and
control, the entire structure must be considered for
diversity purposes. In other words, when an entity is
composed of multiple layers of constituent entities, the
citizenship determination requires an exploration of the
citizenship of the constituent entities as far down as
necessary to unravel fully the citizenship of the entity
before the court. See U.S. Advisor, LLC v. Berkshire
Prop. Advisors, No. 09-cv-00697-PAB-CBS, 2009 WL
2055206, at *2 (D. Colo. July 10, 2009); SREI-Miami, LLC
v. Thomas, No. 08-cv-00730-MSK-BNB, 2008 WL 1944322, at
*1 (D. Colo. May 2, 2008); see also Hicklin Eng'g,
L.C. v. Bartell, 439 F.3d 346, 347 (7th Cir. 2006);
Turner Bros. Crane & Rigging, LLC v. Kingboard Chem.
Holding Ltd., 2007 WL 2848154, at *4-5 (M.D. La. Sept.
24, 2007); cf. Carden, 494 U.S. at 195 (“[W]e
reject the contention that to determine, for diversity
purposes, the citizenship of an artificial entity, the court
may consult the citizenship of less than all of the
Fund has not identified defendants' partners or members
or the citizenship of those entities. See Docket No. 1 at 2.
Additionally, the complaint states its allegations about the
partners and members of defendants “[o]n information
and belief, ” but fails to provide any factual basis to
support the allegations. Id., ¶ 4. The Court
reads Fireman's Fund's averment of the citizenship of
defendants to mean that plaintiff does not have affirmative
knowledge of defendants' citizenship. Such unsupported
allegations do not confer subject matter jurisdiction over
this case. See Yates v. Portofino Real Estate Props. Co.,
LLC, No. 08-cv-00324-PAB-MJW, 2009 WL 2588833, at *3 (D.
Colo. Aug. 17, 2009) (requiring plaintiff to “address
the citizenship of each of [defendants'] members without
resorting merely to their ‘information and belief'
as to the same”); Pinkard Constr. Co., 2009 WL
2338116, at *3 (allegations made on information and belief
“mean that plaintiffs have no affirmative knowledge of
a lack of diversity”); Fifth Third Bank v. Flatrock
3, LLC, 2010 WL 2998305, at *3 (D.N.J. July 21, 2010)
(concluding that an allegation that “upon information
and belief, the members of [an LLC] are citizens of New
York” was insufficient because plaintiff “failed
to identify or trace the citizenship of each individual
member” of the LLC (internal quotation marks
omitted)). The inadequacy of plaintiff's
information and belief is demonstrated by defendants'
denial that all of their members and partners are citizens of
Colorado. See Docket No. 11 at 3, ¶ 4. The
Court is therefore unable to determine the citizenship of
defendants and whether the Court has jurisdiction. See
United States ex rel. General Rock & Sand Corp. v. Chuska
Dev. Corp., 55 F.3d 1491, 1495 (10th Cir. 1995)
(“The party seeking the exercise of jurisdiction in his
favor must allege in his pleading the facts essential to show
jurisdiction.”) (citations and internal quotation marks
foregoing reasons, it is
that, on or before 5:00 p.m. on July 11, 2017, plaintiff
Fireman's Fund Insurance Company shall show cause why
this case should not be dismissed due to the Court's lack
of subject matter jurisdiction.
 Defendants purport to admit diversity
of citizenship, Docket No. 11 at 3, ¶ 5, but this
admission is irrelevant because “subject matter
jurisdiction may not be waived or conferred by the consent of
the parties.” Aves By & Through Aves v.
Shah, 997 F.2d 762, 767 (10th Cir. 1993) (citing
Williams v. Life Sav. and Loan, 802 F.2d 1200, 1202
(10th Cir. 1986)).
 A corporation's “principal
place of business” is “the place where a
corporation's officers direct, control, and coordinate
the corporation's activities.” Hertz Corp. ...