United States District Court, D. Colorado
MAMIE LOUISE WINGERT and THE DWAYNE F. WINGERT TRUST, Plaintiffs,
AUTO-OWNERS INSURANCE COMPANY, Defendant.
ORDER TO SHOW CAUSE
A. Brimmer Judge.
Court takes up this matter sua sponte on
defendant's Notice of Removal of Civil Action [Docket No.
1]. Defendant 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). Defendant 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 the citizenship of either plaintiff Mamie Louise
Wingert (“Wingert”) or plaintiff The Dwayne F.
Wingert Trust (the “Trust”).
Notice of Removal alleges that Wingert and the Trust
“live in Jefferson County, Colorado.” Docket No.
1 at 2, ¶ 6. Although the trust is identified in the
case caption as a party, the Notice of Removal makes no
explicit reference to the citizenship of the trust. While,
for diversity purposes, “a corporation shall be 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), “Congress never expanded this grant
of citizenship to include artificial entities other than
corporations.” Americold Realty Trust v. ConAgra
Foods, Inc., 136 S.Ct. 1012, 1015 (2016).
Americold, the Supreme Court held that the
citizenship of a real estate investment trust, like the
citizenship of other unincorporated entities, depends on the
citizenship of all its members. 136 S.Ct. at 1016. Relying on
the Court's earlier decision in Navarro Savings
Association v. Lee, 446 U.S. 458 (1980), the defendant
had argued that the citizenship of a trust is always
determined by the citizenship of its trustees alone.
Id. at 1016. The Court rejected this conclusion,
explaining that Navarro merely “reaffirmed a
separate rule that when a trustee files a lawsuit in
her name, her jurisdictional citizenship is the
State to which she belongs - as is true of any natural
person.” Americold, 136 S.Ct. at 1016. Thus,
at least initially, Americold appears to establish
rules for determining a party's citizenship depending on
whether the party is a trustee or the trust entity itself.
However, the Court further explained:
Americold's confusion regarding the citizenship of a
trust is understandable and widely shared. The confusion can
be explained, perhaps, by tradition. Traditionally, a trust
was not considered a distinct legal entity, but a
“fiduciary relationship” between multiple people.
Such a relationship was not a thing that could be haled into
court; legal proceedings involving a trust were brought by or
against the trustees in their own name. And when a trustee
files a lawsuit or is sued in her own name, her citizenship
is all that matters for diversity purposes. For a traditional
trust, therefore, there is no need to determine its
membership, as would be true if the trust, as an entity, were
sued. Many States, however, have applied the
“trust” label to a variety of unincorporated
entities that have little in common with this traditional
template. . . . So long as such an entity is unincorporated,
we apply our “oft-repeated rule” that it
possesses the citizenship of all its members. But neither
this rule nor Navarro limits an entity's
membership to its trustees just because the entity happens to
call itself a trust.
Id. (internal citations omitted). Although this
language is open to interpretation, this Court has adopted
the interpretation of four circuits that Americold
establishes, “in contrast to a business trust, the
citizenship of a traditional trust is determined solely by
the citizenship of its trustees.” Woodward, Inc. v.
ZHRO Solutions, LLC, No. 18-cv-01468-PAB, 2018 WL
4697324, at *2 (D. Colo. June 26, 2018) (citing
GBForefront, L.P. v. Forefront Mgmt. Grp., LLC, 888
F.3d 29, 34 (3d Cir. 2018); Raymond Loubier Irrevocable
Trust v. Loubier, 858 F.3d 719, 729 (2d Cir. 2017);
Wang ex rel. Wong v. New Mighty U.S. Trust, 843 F.3d
487, 494 (D.C. Cir. 2016)); see also Demarest v. HSBC
Bank USA, N.A., 920 F.3d 1223, 1229 (9th Cir. 2019)
(concluding that Americold distinguishes traditional
trusts from “other artificial business
entities”). Thus, in order to demonstrate a trust's
citizenship, a party must first allege facts demonstrating
that the trust is either a traditional trust or a business
trust. If the trust is a traditional trust, the
party must then trace the citizenship of all its trustees; if
the trust is a business trust, the party must trace the
citizenship of all its members.
the Notice of Removal lacks any information from which the
Court could properly analyze whether the Trust is a
“business trust” or a “traditional
trust.” Further, the Notice of Removal does not
identify the trustees or beneficiaries of the
Trust.Thus, the Court is unable to determine the
citizenship of the Trust.
Wingert, the allegation that she “live[s] in Jefferson
County, Colorado” establishes only residency, which is
not synonymous with an individual's domicile. See
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)). Only the latter is determinative of a
party's citizenship. See 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
the allegations are presently insufficient to allow the Court
to determine the citizenship of plaintiffs or 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 24, 2019, defendant
shall show cause why this case should not be remanded to
state court due to the Court's lack of subject matter