United States District Court, D. Colorado
ORDER TO SHOW CAUSE
PHILIP
A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE
The
Court takes up this matter sua sponte on
plaintiff's complaint [Docket No. 1]. Plaintiff asserts
that this Court has jurisdiction pursuant to 28 U.S.C. §
1332. Docket No. 1 at 2, ¶ 6.
In
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
28, 2009).
“The
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). Plaintiff asserts 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 that
the Court has subject matter jurisdiction pursuant to §
1332. First, plaintiff has not established the citizenship of
defendants Janet Commodore and Erin Snow. While plaintiff
alleges that Ms. Commodore and Ms. Snow reside in Colorado,
Docket No. 1 at 2, ¶¶ 4-5, 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)).
Moreover, plaintiff asserts its residency allegations
“upon information and belief.” Docket No. 1 at 2,
¶¶ 4-5. Such unsupported allegations, which evince
plaintiff's lack of affirmative knowledge regarding
defendants' citizenship, 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”);
U.S. Fire Ins. Co., 2009 WL 2338116, at *3 (finding
allegations based on “information and belief”
insufficient to confer subject matter jurisdiction).
Plaintiff
also has not demonstrated that its claims against Ms. Snow
satisfy the amount in controversy requirement under §
1332. In cases in which a plaintiff alleges independent and
several liability against multiple defendants, the plaintiff
must satisfy the amount in controversy requirement as to each
individual defendant. See Shirk v. Gonzales, 2018 WL
2411601, at *3 (D.N.M. May 29, 2018); Ass'n Ins. Co.
v. McSwain Metal Fabrication, Inc., No.
17-cv-01550-MSK-MJW, 2017 WL 6048459, at *3 (D. Colo. Dec. 7,
2017) (citing Middle Tennessee News Co., Inc. v. Charnel
of Cincinnati, Inc., 250 F.3d 1077, 1081 (7th Cir.
2001); Bydlak v. Johnson, 2012 WL 13028560, at *2
(E.D. Va. Apr. 24, 2012). Even if the damages claimed against
one defendant exceed $75, 000, a court may not exercise
supplemental jurisdiction over the claims against the
remaining defendants if the amount in controversy requirement
has not been met as to those claims. See Bydlak,
2012 WL 13028560, at *2 n.2 (“Even if claims against an
individual defendant could satisfy the amount-in-controversy
requirement, supplemental jurisdiction would not allow the
Court to reach the claims against the remaining
defendants.” (citing Moore's Federal Practice
§ 106.45[3])); State Farm Mutual Auto. Ins. Co. v.
Greater Chiropractic Ctr. Corp., 393 F.Supp.2d 1317,
1324 (M.D. Fla. 2005) (holding that the court could not
exercise supplemental jurisdiction over claims asserted
against two defendants that did not satisfy the amount in
controversy requirement); see also 28 U.S.C. §
1367(b) (stating that, “[i]n any civil action of which
the district courts have original jurisdiction founded solely
on section 1332 of this title, the district courts shall not
have supplemental jurisdiction under subsection (a) over
claims by plaintiffs against persons made parties under Rule
14, 19, 20, or 24 of the Federal Rules of Civil
Procedure”); Green v. Doukas, 2001 WL 767069,
at *3-4 (S.D.N.Y. June 22, 2001) (holding that court could
not exercise supplemental jurisdiction over claims against
defendants that did not independently satisfy the amount in
controversy requirement and rejecting the argument that,
“because the[] defendants were named in the original
complaint, they were not ‘made parties' . . . under
a literal reading of § 1367(b)”).
Here,
plaintiff asserts two claims against Ms. Snow: a conversion
claim seeking to hold her jointly and severally liable for
her and Ms. Commodore's proceeds from the sheriff's
sale, and a claim for breach of contract. See Docket
No. 1 at 12-15, ¶¶ 63-69, 75-81. The allegations do
not establish that these claims, either individually or in
combination with each other, exceed the $75, 000
jurisdictional threshold. Plaintiff's conversion claim
seeks only the proceeds that Ms. Snow and Ms. Commodore
received from the sheriff's sale, which totaled $49,
985.86. See Id. at 7, 12-13, ¶¶ 38, 66,
69. And the breach of contract claim merely alleges that Ms.
Snow has failed to satisfy her obligations under the Deed of
Trust and is liable for plaintiff's attorney's fees
in attempting to collect the outstanding balance on the
mortgage loan. See Docket No. 1 at 14-15,
¶¶ 78-79, 81. Critically, plaintiff does not assert
that its attorney's fees alone are sufficient to satisfy
the amount in controversy requirement. Nor does it appear
that plaintiff can hold Ms. Snow liable for contract damages
equal to the outstanding balance on the mortgage loan.
See Docket No. 1-2 at 10, ¶ 13 (stating that a
borrower who co-signs the Deed of Trust but does not execute
the promissory note “is not personally obligated to pay
the sums secured” by the Deed of Trust). Plaintiff has
therefore failed to demonstrate that its conversion and
breach of contract claims against Ms. Snow seek damages
exceeding $75, 000.
Because
plaintiff's allegations are presently insufficient to
allow the Court to determine whether it has subject matter
jurisdiction under 28 U.S.C. § 1332, 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.” (internal quotation marks omitted)), it
is
ORDERED
that, on or before 5:00 p.m. on Friday, June 21,
2019, plaintiff shall show cause why this case or,
separately, the claims against defendant Snow, should not be
dismissed due ...