United States District Court, D. Colorado
OVERHEAD SOLUTIONS, INC., d/b/a A1 Garage Doors, a Colorado corporation, Plaintiff,
A1 GARAGE DOOR SERVICE, L.L.C., an Arizona limited liability company, Defendant.
SECOND ORDER TO SHOW CAUSE
A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff's Response to the
Court's June 15, 2011 [sic] Order to Show Cause (Doc. No.
7) [Docket No. 8]. Plaintiff states that the Court has
subject matter jurisdiction over this lawsuit pursuant to 28
U.S.C. § 1332(a). Docket No. 1 at 2, ¶ 5.
filed this lawsuit on June 14, 2019. Docket No. 1. On June
17, 2019, the Court ordered plaintiff to show cause why the
case should not be dismissed due to the Court's lack of
subject matter jurisdiction. Docket No. 7. The Court noted
that plaintiff's allegations were insufficient to
establish diversity jurisdiction because plaintiff did not
identify defendant's members or the citizenship of those
members, as required to determine the citizenship of a
limited liability company. Id. at 3.
filed its response to the Court's show cause order on
June 24, 2019. Docket No. 8. In that response, plaintiff
alleges that defendant has only one member, Thomas Anthony
Mello II, and that Mr. Mello resides in Arizona. Id.
at 2, ¶¶ 6-10. Specifically, plaintiff alleges that
Mr. Mello “resides in a single-family home” in
Scottsdale, Arizona and “pledged such property as
collateral as recently as January 2019.” Id.,
¶ 10. According to plaintiff, this renders defendant a
citizen of Arizona. Id., ¶ 11.
plaintiff has failed to establish that Mr. Mello is a citizen
of Arizona. 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)). “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).
Mr. Mello's act of pledging Arizona property as
collateral in January 2019 may demonstrate that he owns
property in Arizona, this fact alone does not demonstrate
that he is domiciled there. See Reece v. AES Corp.,
2013 WL 1342379, at *4 (E.D. Okla. Apr. 2, 2013) (“[A]
person may own property in a particular state without being a
citizen of it.”); Whitener v. Burnett, 2010 WL
11618919, at *3 (D.N.M. Dec. 13, 2010) (stating that “a
person may have many residences, ” but “may only
have one domicile”); see also 13E Charles Alan
Wright et al., Federal Practice & Procedure § 3612
(3d ed.) (noting that the citizenship inquiry “must be
done on a case by case basis” and that “[n]o
single factor is conclusive”). Courts typically
consider several factors in determining a party's
citizenship, such as “voter registration and voting
practices; . . . location of brokerage and bank accounts;
membership in unions, fraternal organizations, churches,
clubs, and other associations; . . . [and] payment of
taxes.” Dumas v. Warner Literary Grp., LLC,
No. 16-cv-00518-RM-NYW, 2016 WL 10879185, at *2 (D. Colo.
Apr. 29, 2016); see also Alpine Bank v. Carney Bros.
Constr., No. 05-cv-00026-EWN-KLM, 2008 WL 4080003, at *3
(D. Colo. Sept. 2, 2008) (citing additional factors,
including “length of residence, . . . whether the party
moved his or her belongings, and where a party receives
mail”). Plaintiff has not addressed whether these
factors indicate that Mr. Mello is domiciled in Arizona.
cannot establish the citizenship of defendant without
establishing the citizenship of Mr. Mello. See Siloam
Springs Hotel, LLC v. Century Sur. Co., 781 F.3d 1233,
1237-38 (10th Cir. 2015) (“in determining the
citizenship of an unincorporated association for purposes of
diversity, federal courts must include all the entities'
members.”). Cf. Fifth Third Bank v. Flatrock 3,
LLC, 2010 WL 2998305, at *3 (D.N.J. July 21, 2010)
(concluding that an allegation that “upon information
and belief, the members of [an LLC] are citizens of New
York” was insufficient because plaintiff “failed
to identify or trace the citizenship of each individual
member” of the LLC (internal quotation marks omitted)).
Accordingly, it is
that, on or before July 9, 2019, plaintiff
shall show cause why this case should not be dismissed due to