United States District Court, D. Colorado
ROSEMARIE A. HERMAN and ARIEL E. BELEN, as Trustees of the Trust Created by Harold Herman on March 1, 1990, and ARIEL E. BELEN, as Temporary Trustee of the Trust Created by Rosemarie A. Herman Dated November 27, 1991, Plaintiffs,
PBIA & CO. and JULIAN MAURICE HERMAN, individually and as Trustee of the J. Maurice Herman Revocable Trust U/T/A Dated October 29, 2002, Defendants.
ORDER TO SHOW CAUSE
A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE.
Court takes up this matter sua sponte on
defendants' Notice of Removal [Docket No. 1]. Defendants
assert that this Court has jurisdiction 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). Defendants assert 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). The facts
presently alleged are insufficient to establish the
contend that the parties are completely diverse because
plaintiffs Rosemarie Herman and Ariel Belen are residents of
New York, defendant Julian Herman is a resident of Florida,
and defendant PBIA & Co. is a “Delaware
entity.” Docket No. 1 at 2, ¶¶ 4-7. These
allegations are deficient for two reasons. First, the
residency of the parties 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)).
defendants do not specify what type of entity PBIA & Co.
is. This information is critical to the Court's
jurisdictional analysis because, while 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), the citizenship of other
business entities is determined differently. For example, the
citizenship of a limited liability company is determined 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).
defendants' 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), it is
that, on or before 5:00 p.m. on
April 26, 2019, defendants shall show cause
why this case should not be remanded to state court due to
the Court's lack of subject matter jurisdiction.
Even assuming PBIA & Co. is a
corporation, defendants have not alleged its state of
incorporation or principal place of business. Defendants'
allegation that PBIA & Co. is a “Delaware