United States District Court, D. Colorado
TIFFANY ORDONEZ, STEVE SAXON, BURR BOYNTON, and WASATCH CONDOMINIUM ASSOCIATION, a Colorado nonprofit corporation, Plaintiffs,
AMERICAN AUTOMOBILE INSURANCE COMPANY, a foreign corporation, Defendant.
ORDER TO SHOW CAUSE
A. BRIMMER UNITED STATES DISTRICT JUDGE.
Court takes up this matter sua sponte on
defendant'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(a). Docket No.
1 at 2, ¶¶ 4-5.
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. 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). Defendant asserts 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 plaintiffs' citizenship.
notice of removal states, “upon information and belief,
” plaintiff Tiffany Ordonez is a resident of Colorado,
plaintiff Steve Saxon is a resident of Washington, and
plaintiff Burr Boynton is a resident of Idaho. Docket No. 1
at 3, ¶¶ 6-8. Additionally, defendant alleges that:
(1) plaintiff Ordonez has a Colorado physician license, a
Colorado work address, and a Colorado vehicle registration;
(2) plaintiff Saxon owns real property in Washington that
serves as the address for various vehicle registrations; and
(3) plaintiff Boynton owns property in, is employed in, and
has four vehicles registered in Idaho. Id. These
allegations are insufficient to establish plaintiffs'
citizenship. First, the Court reads defendant's averments
“upon information and belief” to mean that
defendant does not have affirmative knowledge of
plaintiffs' 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”).
the residency of plaintiffs does not establish their
citizenship for purposes of diversity jurisdiction. 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)).
although a party's residency, work address, vehicle
registration, and ownership of real property in a particular
state are indicative of domicile, they are not conclusive.
See Middleton v. Stephenson, 749 F.3d 1197, 1200-01
(10th Cir. 2014) (stating that courts should “consider
the totality of the circumstances” to determine a
party's domicile); 13E Charles Alan Wright et
al., Federal Practice & Procedure § 3612 (3d
ed.) (noting that the citizenship inquiry “must be done
on a case by case basis” and that “[n]o single
factor is conclusive”). Courts typically consider
several other factors in determining a party's
citizenship, including “voter registration and voting
practices; . . . location of brokerage and bank accounts;
membership in unions, fraternal organizations, churches,
clubs, and other associations; . . . [and] payment of
taxes.” Dumas v. Warner Literary Grp., No.
16-cv-00518-RM-NYW, 2016 WL 10879185, at *2 (D. Colo. Apr.
29, 2016); see also Alpine Bank v. Carney Bros.
Constr., No. 05-cv-00026-EWN-KLM, 2008 WL 4080003, at *3
(D. Colo. Sept. 2, 2008) (citing additional factors,
including “length of residence, . . . whether the party
moved his or her belongings, and where a party receives
mail”). Defendant has addressed none of these. Given
that the allegations are somewhat conflicting with regard to
the domiciles of plaintiffs Saxon and Boynton - notably, both
plaintiffs own real property in at least two states, and
plaintiff Boynton has vehicle registrations in both Idaho and
Colorado - defendant's allegations are presently
insufficient to satisfy the Court of plaintiffs'
the Court is unable to determine the citizenship of certain
plaintiffs 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), it is
that, on or before 5:00 p.m. on
December 5, 2018, defendant shall show cause
why this case should not be remanded to state court due to