United States District Court, D. Colorado
MICHAEL C. TRIMARCO, Plaintiff,
CHARLES E. ERGEN, III, Defendant.
ORDER TO SHOW CAUSE
A. BRIMMER UNITED STATES DISTRICT JUDGE
matter comes before the Court on Plaintiff's Supplemental
Memo of Law in Response to Court's Order to Show Cause
Relating to Subject Matter Jurisdiction [Docket No. 30] and
Plaintiff's Second Supplemental Memo of Law in Response
to Court's Order to Show Cause Relating to Subject Matter
Jurisdiction [Docket No. 33]. Plaintiff asserts that this
Court has subject matter jurisdiction pursuant to 28 U.S.C.
§ 1332. Docket No. 1 at 2, ¶ 4.
April 16, 2018, the Court ordered plaintiff to show cause why
this case should not be dismissed based on plaintiff's
failure to establish where the parties are domiciled for
purposes of diversity jurisdiction. Docket No. 24 at 2-3.
Plaintiff filed a response to the show cause order on April
20, 2018, claiming that he “is a United States citizen
and a citizen of New York” and that defendant renounced
his United States citizenship in 2011 and became a citizen of
the Federation of Saint Christopher and Nevis. Docket No. 25
at 2. Before the Court ruled on the sufficiency of
plaintiff's new allegations, plaintiff filed two
supplemental responses to the Court's show cause order.
See Docket Nos. 30, 33. In the first supplemental
response, plaintiff states that documents filed by defendant
in conjunction with his pending motion to dismiss indicate
that defendant's United States citizenship was restored
in 2016 and given retroactive effect to September 14, 2011.
Docket No. 30 at 2. Although plaintiff does not dispute that
defendant currently resides overseas, see Id. at 2
(“Chase maintains that he resides in
Switzerland”), plaintiff contends that diversity
jurisdiction exists because defendant has never relinquished
his Colorado domicile. Id. at 3. Plaintiff cites
three facts to support this argument: (1) defendant sought
restoration of his United States citizenship in 2016; (2)
defendant went through “extraordinary efforts to obtain
sole custody of his daughter, ” who now lives with his
parents in Colorado; and (3) defendant moved to Switzerland
for the sole purpose of obtaining medical treatment.
Id. at 2.
plaintiff's second supplemental response, filed on May 9,
2018, plaintiff contends that defendant has been residing at
5225 Bow Mar Drive, Littleton, Colorado, for the past several
months with his “one-time” fiancée who
recently gave birth to defendant's second child. Docket
No. 33 at 2. Plaintiff asserts that these newly discovered
facts demonstrate defendant's intent to remain domiciled
in Colorado. Id. at 3.
28 U.S.C. § 1332(a)(1)-(2), a district court has
“original jurisdiction of all civil actions where the
matter in controversy exceeds the sum or value of $75, 0000,
exclusive of interests and costs, and is between [ ] citizens
of different States” or “citizens of a State and
citizens or subjects of a foreign state.” However, a
“United States citizen domiciled in a foreign
country” is neither a citizen of a state nor a
“citizen or subject of a foreign state” for
purposes of § 1332. Jones v. Dalrymple, 679
Fed.Appx. 668, 669 (10th Cir. 2017) (unpublished) (internal
quotation marks and brackets omitted) (citing
Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826,
828-29 (1989)). Instead, such a person is considered
“stateless” and cannot sue or be sued in federal
court based on diversity jurisdiction. Swiger v.
Allegheny Energy, Inc., 540 F.3d 179, 184 (3d Cir.
2008); see also Newman-Green, Inc., 490 U.S. at 829
(finding that defendant's “‘stateless'
status” and United States citizenship destroyed
complete diversity under § 1332). Plaintiff admits that
defendant is a citizen of the United States. See
Docket No. 30 at 2; Docket No. 33 at 2. The Court's
subject matter jurisdiction over this case thus depends on
whether defendant is also domiciled abroad.
general rule is that “[o]ne acquires a ‘domicile
of origin' at birth, and that domicile continues until a
new one (a ‘domicile of choice') is
acquired.” Mississippi Band of Choctaw Indians v.
Holyfield, 490 U.S. 30, 48 (1989); see also
Middleton v. Stephenson, 749 F.3d 1197, 1200 (10th Cir.
2014) (noting presumption that “domicile, once
established, remains the same”) (citing Mitchell v.
United States, 88 U.S. 350, 353 (1874)). For a person to
“effect a change in domicile, two things are
indispensable: First, residence in a new domicile, and
second, the intention to remain there indefinitely.”
Smith v. Cummings, 445 F.3d 1254, 1260 (10th Cir.
alleges that defendant's childhood domicile was Colorado.
See Docket No. 30 at 3. This allegation is supported
by the record. See Docket No. 14-1 at 3, ¶ 7
(affidavit of Christopher McAdam) (stating that “5330
Lakeshore Drive was Chase's childhood home); Docket No.
25-1 at 2, ¶ 7 (declaration of Michael Trimarco)
(stating that defendant “grew up at 5330 Lakeshore
Drive in Littleton, Colorado” and that defendant's
parents continue to reside there). Plaintiff further asserts
that defendant continues to be domiciled in Colorado because
“he never established a permanent domicile in
Switzerland.” Docket No. 30 at 3. As evidence of this
fact, plaintiff cites defendant's decision to seek
restoration of his United States citizenship in 2016, his
daughter's residence at the 5330 Lakeshore Drive address,
his fiancée's residence at a home directly behind
his parents' Lakeshore Drive address with defendant's
second child, and defendant's limited purpose for moving
to Switzerland - to seek medical treatment. See Id.
at 2-3; Docket No. 33 at 3.
plaintiff's allegations might ordinarily entitle him to a
presumption that defendant has not changed his domicile,
other evidence in the record undermines that conclusion.
See Middleton, 749 F.3d at 1200 (presumption that
party's domicile remains the same can be rebutted by the
production of “sufficient evidence suggesting that
domicile has changed”). For example, defendant has
submitted evidence in support of his pending motion to
dismiss showing that he has lived at the same address in
Switzerland since 2009, holds a Swiss residency card and
driver's license, and works for a Swiss company.
See Docket No. 27-1 at 2, ¶ 3; Docket No. 27-2
at 2, ¶¶ 3-4, 6; see also Middleton, 749
F.3d at 1201 (citing a party's current residence, place
of employment, and driver's license as factors to be
considered in determining party's domicile).
Additionally, plaintiff presented evidence in his initial
response to the Court's show cause order that defendant
renounced his United States citizenship in 2011 and obtained
citizenship in the Federation of Saint Christopher and Nevis
the following year. See Docket No. 25 at 2; Docket
No. 25-1 at 2, ¶ 8; Docket No. 25-4 at 7. Althoug h
defendant's U.S. citizenship has since been restored, his
decision to obtain citizenship in a foreign country is
inconsistent with a finding that defendant has “never
established a permanent domicile” outside of Colorado.
See Docket No. 30 at 3. Finally, the August 2016
letter restoring defendant's citizenship status suggests
that it was the failing health of defendant's
grandmother, not his desire to permanently return to the
United States, that prompted defendant's request for
restoration of citizenship. See Docket No. 27-4 at 2
(“Our office takes note of your request for expedited
adjudication due to the failing health of your grandmother .
. . .”). Plaintiff has not addressed the impact of this
evidence on the determination of defendant's domicile.
Because the evidence rebuts plaintiff's assertion that
defendant has not established a permanent domicile outside of
Colorado, plaintiff's allegations are presently
insufficient to establish subject matter jurisdiction.
alternatively requests an opportunity to conduct
jurisdictional discovery on the issue of defendant's
domicile. Docket No. 30 at 3 (requesting discovery of
“the evidentiary basis upon which Chase's
citizenship was reinstated, ” “Chase's travel
records” to and from Colorado, and “Chase's
intent to be domiciled in Colorado”); Docket No. 33 at
4 (same). While a district court has the authority to permit
discovery in order for a party to prove diversity
jurisdiction, such discovery is discretionary. See Abrego
Abrego v. The Dow Chem. Co., 443 F.3d 676, 691 (9th Cir.
2006) (where party invoking federal jurisdiction has
“failed to present to the district court any pleading,
evidence, or admission that establishes that it is more
likely than not that jurisdiction lies, ” it is
“well within the court's discretion to remand to
state court rather than ordering jurisdictional discovery,
with the knowledge that later-discovered facts may prompt a
second attempt at removal”). Plaintiff does not argue
that the denial of jurisdictional discovery will result in
prejudice. See Sizova v. Nat'l Inst. of Standards
& Tech., 282 F.3d 1320, 1326 (10th Cir. 2002)
(stating that “a refusal to grant [jurisdictional]
discovery constitutes an abuse of discretion if the denial
results in prejudice to a litigant”). Accordingly, the
Court declines plaintiff's request. To permit
jurisdictional discovery in this case would undermine the
well-established rule that “[t]he party invoking
federal jurisdiction bears the burden of establishing such
jurisdiction as a threshold matter.” See
Radil, 384 F.3d at 1224; see also Lowery v. Ala.
Power Co., 483 F.3d 1184, 1216 (11th Cir. 2007)
(“[S]hould the plaintiff request leave to conduct
discovery to support its assertion that the case is properly
before the court, the court would deny such a request. In
such a situation, the court would not reserve ruling on the
motion to dismiss in order to allow the plaintiff to look for
what the plaintiff should have had - but did not - before
coming through the courthouse doors, even though the court
would have the inherent power to do so.”).
the Court is presently unable to determine defendant's
citizenship and whether the Court has subject matter
jurisdiction, it is
that Plaintiff's Unopposed Motion to File a Supplemental
Response to the Court's Order to Show Cause Regarding
Subject Matter Jurisdiction [Docket No. 29] is
GRANTED. It is further
that Plaintiff's Second Unopposed Motion to File a
Supplemental Response to the Court's Order to Show Cause
Regarding Subject Matter Jurisdiction [Docket No. 32] is
GRANTED. It is further
that, on or before 5:00 p.m. on May
30, 2018, plaintiff shall show cause why this case
should not be dismissed due to the Court's lack of
subject matter jurisdiction. It is further
that plaintiff's response to the Court's show cause
order shall specifically address the impact of the following
evidence on the Court's determination of defendant's
domicile: (1) defendant's residency at the same address
in Switzerland since 2009; (2) defendant's possession of
a Swiss residency card since 2009; (3) defendant's
possession of a Swiss driver's license since 2009; (4)
defendant's renunciation of U.S. citizenship in 2011; and
(5) the suggestion, in the 2016 letter ...