United States District Court, D. Colorado
ORDER TO SHOW CAUSE
A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE.
Court takes up this matter sua sponte on plaintiff
Michele Deangelis' Complaint and Jury Demand [Docket No.
1]. Plaintiff asserts 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). 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). “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. The facts presently alleged are insufficient to
establish any party's citizenship.
complaint states that plaintiff “is and has been a
resident of the State of Washington, during all relevant
times” and that her address is “463 Lakenes Rd.,
Quilcene, WA, 98376.” Docket No. 1 at 1, ¶¶
1-2. These allegations do not establish plaintiff's
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)).
plaintiff has failed to adequately allege the citizenship of
any of the defendants. First, the Court reads plaintiff's
averments “[b]ased on information and belief” to
mean that plaintiff does not have affirmative knowledge as to
any of her allegations regarding the defendants'
citizenship. See Docket No. 1 at 1, ¶¶
3-5. Such unsupported allegations 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 (interpreting allegations based on
“information and belief” to “mean that
plaintiffs have no affirmative knowledge of a lack of
plaintiff's specific citizenship allegations are
deficient as to each defendant. Plaintiff states that,
“[b]ased on information and belief, Defendant Marshall
J. Currier [sic], with an address of 1230 CR 600, Pagosa
Springs, CO 81147.” Docket No. 1 at 1, ¶ 3.
Although plaintiff associates Mr. Currier with an address in
Colorado, plaintiff does not allege that Mr. Currier is
domiciled at that address. See Id. Even if the Court
were to assume that Mr. Currier lives at that address,
plaintiff's allegation would still be insufficient to
establish Mr. Currier's state citizenship. As set out
above, allegations of mere residency may not be equated with
citizenship for purposes of diversity jurisdiction.
Whitelock, 460 F.2d at 514.
alleges that, “[b]ased on information and belief,
Defendant Jeremy McInnis . . . owns the tow truck and tow
truck company for whom Defendant Currier was working when he
caused the injuries alleged herein through negligence, which
business is located at 109 Trinity Lane, Pagosa Springs, CO
81147.” Docket No. 1 at 1, ¶ 4. Plaintiff's
statement contains no allegation that Mr. McInnis is a
citizen of Colorado. As stated above, an individual's
state citizenship is equivalent to domicile, which is
determined by that person's physical presence in a state
and an intent to remain there. Cummings, 445 F.3d at
1260. Plaintiff's allegation that Mr. McInnis owns a
business in Colorado is insufficient to establish that he is
a Colorado citizen. See Dumas v. Warner Literary Grp.,
LLC, No. 16-cv-00518-RM-NYW, 2016 WL 10879185, at *2 (D.
Colo. Apr. 29, 2016) (stating that courts consider a number
of factors in determining a party's citizenship,
including “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.”).
plaintiff contends that, “[b]ased on information and
belief, Defendant J.R. Towing . . . has its primary place of
business at 109 Trinity Lane, Pagosa Springs, CO
81147.” Docket No. 1 at 1, ¶ 5. Plaintiff does not
specify what type of entity J.R. Towing 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.
allegation that “J.R. Towing is also known as J.R.
Towing, Inc.” is insufficient to establish that J.R.
Towing is a corporation. See Aeron Lifestyle Tech., Inc.
v. Changzhou AL-RO/AIM Elec. & Tech. Inc., 2013 WL
12149712, at *1 (S.D. Iowa June 14, 2013) (“Although
the caption contains the notation “Inc.” after
Changzhou, this Court cannot tell from the Notice of Removal
. . . what type of entity Changzhou is, and whether
jurisdiction is proper.”). Even if the Court were to
assume that J.R. Towing is a corporation, plaintiff has not
properly alleged its citizenship because she has not alleged
its state of incorporation. See Docket No. 1 at 1,
the allegations are presently insufficient to allow the Court
to determine the citizenship of any party and 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.”
(internal quotation marks omitted)), it is
that, on or before July 19, 2019, plaintiff
shall show cause why this case should not be dismissed due to