United States District Court, D. Colorado
TIFFANY PHILLIPS and UNIVERSAL PRAXIS, LLC, a Colorado limited liability company, Plaintiffs,
CALISTA CORPORATION, an Alaska corporation, ANDREW GUY, and GEORGE OWLETUCK, Defendants.
ORDER TO SHOW CAUSE
A. BRIMMER United States District Judge
Court takes up this matter sua sponte on the Notice
of Removal [Docket No. 1] filed by defendants Calista
Corporation and Andrew Guy. Defendants state that the Court
has subject matter jurisdiction over this lawsuit pursuant to
28 U.S.C. § 1332(a). Docket No. 1 at 2-3, ¶¶
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). Defendants assert that this Court has
diversity jurisdiction under 28 U.S.C. § 1332(a).
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). The facts presently alleged are insufficient to
establish the parties' citizenship.
notice of removal states that plaintiff Universal Praxis, LLC
is a citizen of Colorado because “a corporation is
deemed to be a citizen of both the state of its incorporation
and the state where it has its principal place of
business.” Docket No. 1 at 3, ¶ 6. Additionally,
defendants aver, based on the complaint, that defendant
George Owletuck “is residing in Ecuador.”
Id., ¶ 9. These allegations are deficient for
three reasons. First, plaintiff Universal Praxis, LLC is a
limited liability company and thus its citizenship is
determined not by its state of organization or principal
place of business, but by the citizenship of all of its
members. See Siloam Springs Hotel, LLC v. Century Sur.
Co., 781 F.3d 1233, 1237-38 (10th Cir. 2015). Because
the notice of removal does not identify Universal Praxis,
LLC's members or the citizenship of those members, the
Court is unable to determine the citizenship of Universal
Praxis, LLC. Second, defendants allege that defendant George
Owletuck is a resident of Ecuador. Docket No. 1 at 3, ¶
9. However, 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)). Defendant's residency is therefore irrelevant
for purposes of diversity jurisdiction.
even if defendant Owletuck were domiciled in Ecuador, the
Court would likely lack subject matter jurisdiction over this
lawsuit. 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). Thus, assuming defendant Owletuck is a United States
citizen domiciled in Ecuador, his inclusion in this lawsuit
destroys complete diversity under § 1332. See
Newman-Green, Inc., 490 U.S. at 829 (finding that
defendant's “‘stateless' status”
and United States citizenship destroyed complete diversity
under § 1332).
the Court is currently unable to determine the citizenship of
the parties and whether the Court has jurisdiction, it is
that, on or before 5:00 p.m. on August 11,
2018, defendants shall show cause why this case
should not be remanded to state court due to the ...