United States District Court, D. Colorado
A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE.
matter is before the Court on the response of defendants Twin
City Fire Insurance Company (“Twin City”),
Liberty Mutual Insurance Company (“Liberty
Mutual”), and GEICO Casualty Company
(“GEICO”) (“defendants”) to the
Court's March 22, 2019 Order to Show Cause [Docket No.
15]. Defendants assert that the Court has subject matter
jurisdiction pursuant to 28 U.S.C. § 1332. Docket No. 1
at 2, ¶ 6.
City removed this case from the District Court for the City
and County of Denver, Colorado on March 12, 2019. Docket No.
1. On March 22, 2019, the Court entered an order stating that
it was unable to determine whether the Court had subject
matter jurisdiction because Twin City had failed to allege
the principal place of business of each of the three
corporate defendants - Twin City, Liberty Mutual, and
GEICO. See Docket No. 15 at 2-3 (citing
28 U.S.C. § 1332(c)(1) for the proposition that a
corporate defendant shall be deemed a citizen of the state by
which it has been incorporated and the state in which it has
its principal place of business). The Court also stated it
was unable to determine whether it had subject matter
jurisdiction because Twin City had not sufficiently pled the
citizenship of defendant Gashota, as it had pled
Gashota's residence, not domicile. See Docket
No. 15 at 3. The Court directed Twin City to show cause why
this case should not be remanded to state court due to the
Court's lack of subject matter jurisdiction.
filed their response to the show cause order on April 2,
2019. In their response, defendants have established the
citizenship of Twin City, Liberty Mutual, and GEICO.
See Docket No. 16 at 2, 3 (establishing that Twin
City's principal place of business is in Connecticut,
Liberty Mutual's principal place of business is in
Massachusetts, and GEICO's principal place of business is
defendants have failed to establish the citizenship of
Gashota. Although defendants continue to allege Gashota
resides in Michigan, they do not establish his place of
domicile. Defendants assert that, because Gashota has not yet
been served, they lack necessary information to determine
Gashota's domicile. Further, they contend that, if they
had been required to wait to remove the case until Gashota
had been served to confirm his place of domicile, they would
have been prejudiced because the time for removal would have
lapsed. For these reasons, defendants state that,
“[b]ecause no evidence exists to divest the Court of
diversity jurisdiction as a matter of legal certainty, the
Court must take the allegations regarding Defendant
Gashota's residence, as set forth in Plaintiff's
Complaint and the police report,  as true and accurate
representations of his domicile.” Docket No. 16 at 3,
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). By relying only on defendant Gashota's
purported residence, defendants have failed to meet this
burden. 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.”). “To establish domicile in
a particular state, a person must be physically present in
the state and intend to remain there.” Smith v.
Cummings, 445 F.3d 1254, 1260 (10th Cir. 2006).
Gashota's purported 2016 Michigan address does not
sufficiently establish his physical presence or an intent to
remain in the state.
fact that Gashota has not yet been served has no bearing on
defendants' burden. “[D]iversity of each defendant
must be considered prior to removal, whether or not each
defendant has been served.” Boulter v. Citi
Residential Lending, 2011 WL 128786, at *3 (E.D. Okla.
Jan. 14, 2011). “[T]he law is clear that the
citizenship of all named defendants, whether served with
process or not, must be considered in determining whether
complete diversity exists, thereby providing a jurisdictional
basis for removal under 28 U.S.C. § 1441(a).”
Ake v. Cent. United Life Ins. Co., 2017 WL 3105875,
at *2 (W.D. Okla. July 21, 2017) (quoting Ott v. Consol.
Freightways Corp. of Delaware, 213 F.Supp.2d 662, 664
(S.D.Miss. 2002)). Whether or not Gashota has been served,
defendants must demonstrate his citizenship to establish
subject matter jurisdiction.
these reasons, the allegations are presently insufficient to
allow the Court to determine the citizenship of Gashota and
whether the Court has jurisdiction. Wherefore, it is
that, due to the Court's lack of subject matter
jurisdiction, this case is REMANDED to the
District Court for the City and County of Denver, Colorado,
where it was originally filed as No. 2019CV30393.
Twin City had only alleged that Twin
City, Liberty Mutual, and GEICO are organized under the laws
of Indiana, Massachusetts, and Maryland, respectively. Docket
No. 1 at 2, ¶ 8.
Defendants allege that the police
report from the underlying accident, which occurred in 2016
[Docket No. 3 at 3, ¶ 14], listed defendant Gashota ...