United States District Court, D. Colorado
CLARENDON NATIONAL INSURANCE COMPANY, as successor by way of merger with Sussex Insurance Company f/k/a Companion Property & Casualty Insurance Company and Companion Specialty Insurance Company, an Illinois Corporation, Plaintiff,
CLAY STREET CONDOS, LLC, a Colorado limited liability company, ELEVATION BUILDERS, INC. d/b/a Generation Development, a Colorado Corporation, and CLAY/28TH CONDOMINIUM ASSOCIATION, INC., a Colorado Non-Profit Corporation, Defendants.
ORDER TO SHOW CAUSE
A. BRIMMER UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff Clarendon National
Insurance Company's Response to the January 7, 2019 Order
to Show Cause (Docket No. 13) [Docket No. 14] and the First
Amended Complaint for Declaratory Judgment [Docket No. 16].
Plaintiff asserts that this Court has subject matter
jurisdiction pursuant to 28 U.S.C. § 1332. Docket No. 1
at 4, ¶ 15; Docket No. 14 at 4; Docket No. 16 at 4,
January 7, 2019, the Court identified two deficiencies in
plaintiff's jurisdictional allegations: (1)
plaintiff's allegations “on information and
belief” were insufficient to establish subject matter
jurisdiction; and (2) plaintiff had not alleged the
citizenship of each of the members of defendant Clay Street
Condos, LLC. Docket No. 13 at 2-3.
January 16, 2019, plaintiff filed an amended complaint along
with a response to the Court's show cause order.
See Docket Nos. 14, 16. As noted in plaintiff's
response, the amended complaint affirmatively alleges
defendants' citizenship without resorting to
“information and belief.” See Docket No.
14 at 4; Docket No. 16 at 3-4, ¶¶ 8-13. The amended
complaint further states that the only member of defendant
Clay Street Condos, LLC is defendant Generation Development,
a “Colorado limited liability company, ” whose
sole member is Chris Lonigro, “a resident of
Colorado.” Docket No. 14 at 3; Docket No. 16 at 3-4,
amended allegations are insufficient to establish the
citizenship of defendant Clay Street Condos, LLC. While
plaintiff correctly traces defendant's citizenship
through multiple layers of ownership, plaintiff's
allegation that Chris Lonigro is “a resident of
Colorado” is not relevant to the issue 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)). The Court is therefore unable to determine the
citizenship of defendants Generation Development and Clay
Street Condos, LLC.Wherefore, it is
that, on or before 5:00 p.m. on Wednesday, January
30, 2019, plaintiff shall show cause why this case
should not be dismissed due to the Court's lack of
subject matter jurisdiction.
Plaintiff's averment that
“[d]efendant Generation . . . was a Colorado limited
liability company, ” Docket No. 16 at 4, ¶ 13, is
inconsistent with the case caption, which indicates that
Generation Development is merely the operating name for
Elevation Builders, Inc., a “Colorado
corporation.” Docket No. 1 at 1; Docket No. 16 at 1;
see also Edgley v. Lappe, 342 F.3d 884, 889 (8th
Cir. 2003) (noting that the majority of jurisdictions to have
addressed the issue “hold that a ‘dba'
designation does not create a separate entity”);
Williams v. First Nat'l Bank of St. Louis, 2014
WL 5800199, at *4 (E.D. Mo. Nov. 7, 2014)
(“‘Doing business as' means a company is
using an assumed name. If Company A ‘does business
as' Company B, there is only one entity.” (quoting
Black's Law Dictionary 403 (7th ed. 1999)). While the
Court assumes Generation Development is a limited liability
company for purposes of this order, plaintiff should clarify
the inconsistency in its response.
As indicated in footnote 1, it is not
clear whether plaintiff is treating Generation Development as
a separate ...