United States District Court, D. Colorado
A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE.
matter is before the Court on the Recommendation of United
States Magistrate Judge filed on March 27, 2019 [Docket No.
29], wherein Magistrate Judge Kathleen M. Tafoya recommends
this action be dismissed for lack of federal jurisdiction.
Docket No. 29 at 4. Plaintiff Patrick Hawkinson filed an
objection [Docket No. 30]. Plaintiff stated that he had not
yet received a copy of the magistrate judge's
recommendation and that, in order to ensure his objection was
filed on time, he based his objection on the issues raised in
the magistrate judge's earlier order to show cause
[Docket No. 16]. Docket No. 30. Upon receiving a copy of the
magistrate judge's recommendation, plaintiff filed a
Motion to Supplement Plaintiff's Objection to Magistrates
[sic] Recommendation [Docket No. 32] and Plaintiff's
Supplemented Verified Objection to District Court on
Magistrate's Recommendation to Dismiss [Docket No. 31].
Plaintiff objects to the magistrate judge's determination
that plaintiff had not established his domicile for purposes
of diversity jurisdiction. Docket No. 31 at 7.
brought this lawsuit against defendants Glenn Obrien and
Joseph Lynn Obrien to quiet title on seven Colorado
properties, seeking declaratory relief and money damages.
Docket No. 1 at 12, ¶¶ 26-33; id. at 13.
He asserts that he is domiciled in Texas and that defendants
are domiciled in Colorado. Id. at 2-3. He contends
the Court has jurisdiction over his claims under 28 U.S.C.
§ 1332(a). Id. at 3.
defendants failed to plead or otherwise defend against the
lawsuit, plaintiff filed an Amended Request for Clerk's
Entry of Default [Docket No. 11]. The clerk entered default as
to both defendants [Docket No. 12], and plaintiff filed two
motions for default judgment. Docket No. 13; Docket No. 14.
magistrate judge then entered an Order to Show Cause [Docket
No. 16], finding that plaintiff's allegations of his own
citizenship were insufficient to determine if complete
diversity exists between the parties and ordering plaintiff
to show cause why she should not recommend dismissal for lack
of federal jurisdiction. Docket No. 16 at 2-3.
filed his response to the show cause order on March 1, 2019.
Docket No. 22. He stated that, while he has a temporary
mailing address in Colorado, his permanent domicile is in
Texas. Id. at 1-2. To support his
contention, he attached a declaration attesting to his Texas
citizenship, portions of a lease agreement for a Texas
residence that bears plaintiff's name and has a lease
term of November 1, 2017 to May 30, 2019, and a copy of a
letter dated August 16, 2018 sent to plaintiff at that Texas
address. Docket No. 22 at 6-9.
magistrate judge found that, while the lease and letter
“demonstrate that Plaintiff resided in Texas at some
point in the past, ” they do not establish that
“his current domicile is in Texas, nor do the documents
show proof of an intent for Plaintiff to remain indefinitely
in Texas.” Docket No. 29 at 4. Specifically, the
magistrate judge relied on the fact that plaintiff's
complaint lists a Colorado address and that plaintiff filed a
notice changing his mailing address to a Colorado address.
Id. at 2. Further, the magistrate judge noted that
mail sent by the Court to plaintiff's claimed Texas
address had been returned as undeliverable and that the only
mail that was not subsequently returned as undeliverable was
sent to a Colorado address. Id. at 2, n. 1;
id. at 4. Finding that plaintiff had failed to
provide evidence that his current domicile is outside
Colorado, the magistrate judge recommended that the case be
dismissed for lack of federal jurisdiction. Id. at
4. Plaintiff filed his supplemental objection to the
recommendation on April 18, 2019. Docket No. 31.
STANDARD OF REVIEW
Court will ‘determine de novo any part of the
magistrate judge's disposition that has been properly
objected to' by plaintiff.” Turner v.
Falk, No. 13-cv-02957-PAB-MJW, 2014 WL 7451698, at *1
(D. Colo. Dec. 31, 2014) (citing Fed.R.Civ.P. 72(b)(3)).
“[A] party's objections . . . must be both timely
and specific to preserve an issue for de novo review by the
district court.” United States v. One Parcel of
Real Property Known as 2121 East 30th St., 73 F.3d 1057,
1060 (10th Cir. 1996). Because plaintiff is proceeding
pro se, his pleadings are liberally construed.
See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
However, the Court should not be an advocate for a pro
se litigant. See Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991).
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). “For purposes of federal diversity
jurisdiction, an individual's state citizenship is
equivalent to domicile.” Smith v. Cummings,
445 F.3d 1254, 1259 (10th Cir. 2006). “To establish
domicile in a particular state, a person must be physically
present in the state and intend to remain there.”
Id. at 1260. “Because domicile is a voluntary
status, a prisoner is presumed to be a citizen of the state
of which he was a citizen before his incarceration, even if
he is subsequently incarcerated in another state.”
objects to the recommendation's conclusion that this
Court lacks federal jurisdiction over this lawsuit because he
has failed to prove that he is a citizen of Texas. Plaintiff
argues that, although he is temporarily in Colorado, his
permanent domicile is in Texas. Docket No. 31 at 5. Plaintiff
claims the following evidence establishes his physical
presence in Texas and that he intends to remain there: his
declaration asserting that his home address is in Texas and
that he intends to remain in Texas; a lease agreement,
bearing plaintiff's name, for a Texas residence; and a
letter that was sent to plaintiff at that Texas residence.
Id. at 4-5, ¶ d.1. Plaintiff also references
portions of his various filings in which he states that Texas
is his state of domicile and that he intends to return to
allegations of citizenship are generally insufficient to
establish a court's federal jurisdiction; “[t]he
party seeking the exercise of jurisdiction in his favor
‘must allege in his pleading the facts essential to
show jurisdiction.'” Penteco Corp. Ltd.
Partnership-1985A v. Union Gas System, Inc., 929 F.2d
1519, 1521 (10th Cir. 1991) (quoting McNutt v. General
Motors Acceptance Corp., 298 U.S. 178, 189 (1936)). A
number of circuit courts have determined that a party's
statements of intent regarding domicile, when contradicted,
are afforded little weight. See Korn v. Korn, 398
F.2d 689, 691 (3d Cir. 1968) (“One's testimony as
to his intention to establish a domicile, while entitled to a
full and fair consideration, is subject to the infirmity of
any self-serving declaration, and it cannot prevail to
establish domicile when it is contradicted or negatived by an
inconsistent course of conduct.”); see also Hendry
v. Masonite Corp., 455 F.2d 955, 956 (5th Cir. 1972)
(“In determining one's ‘citizenship' or
‘domicile' statements of intent are entitled to
little weight when in conflict with facts.”). However,
such scrutiny is not applied to a party's assertions of
domicile when the assertions are not contradicted by the
record. See Preston v. Tenet Healthsystem Memorial Med.
Center, Inc., 485 F.3d 804, 816 (5th ...