United States District Court, D. Colorado
ORDER TO SHOW CAUSE
A. BRIMMER, UNITED STATES DISTRICT JUDGE.
Court takes up this matter sua sponte on
plaintiff's complaint [Docket No. 1]. Plaintiff states
that this Court has subject matter jurisdiction over this
lawsuit pursuant to 28 U.S.C. § 1332. Docket No. 1 at 2,
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. See
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, despite much time
and expense having been dedicated to the case, a lack of
jurisdiction causes it to be dismissed. See U.S. Fire
Ins. Co. v. Pinkard Constr. Co., No.
09-cv-00491-PAB-MJW, 2009 WL 2338116, at *3 (D. Colo. July
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). Plaintiff asserts that this Court has
diversity jurisdiction under 28 U.S.C. § 1332. Pursuant
to that section, “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.” 28 U.S.C. § 1332(a).
alleges that he “is a resident of the State of
Colorado” and that defendant is “believed to be a
foreign corporation licensed to conduct business in the State
of Colorado.” Docket No. 1 at 1, ¶¶ 1-2.
These allegations are insufficient to establish diversity for
three reasons. First, domicile, not residency or mailing
address, is determinative of citizenship. Whitelock v.
Leatherman, 460 F.2d 507, 514 (10th Cir. 1972)
(“[A]llegations of mere ‘residence' may not
be equated with ‘citizenship' for the purposes of
establishing diversity.”); see also Mississippi
Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48
(1989) (“‘Domicile' is not necessarily
synonymous with ‘residence, ' and one can reside in
one place but be domiciled in another.” (citations
omitted)). The residency of plaintiff is therefore not
relevant for purposes of diversity jurisdiction. Second, the
Court reads plaintiff's averment that defendant is
“believed to be a foreign corporation” to mean
that plaintiff does not have affirmative knowledge of
defendant's 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 [defendant's] members without
resorting merely to their ‘information and belief'
as to the same”); U.S. Fire Ins. Co., 2009 WL
2338116, at *3 (interpreting allegations based on
“information and belief” to “mean that
plaintiffs have no affirmative knowledge of a lack of
diversity”). Finally, a corporation is “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). Plaintiff alleges that defendant is a
“foreign corporation” licensed to conduct
business in Colorado but fails to identify the location of
defendant's principal place of business.
these reasons, plaintiff's allegations are presently
insufficient to allow the Court to determine the citizenship
of the parties or 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
omitted). Accordingly, it is
that, on or before 5:00 p.m. on
April 27, 2018, plaintiff shall show cause
why this case should not be dismissed due to the ...