United States District Court, D. Colorado
SECOND ORDER TO SHOW CAUSE
A. BRIMMER, CHIEF JUDGE
matter is before the Court on plaintiff's Response to
Order to Show Cause [Docket No. 7] filed on July 19, 2019.
Plaintiff asserts that this Court has jurisdiction pursuant
to 28 U.S.C. § 1332. Docket No. 1 at 2, ¶ 7.
filed this lawsuit on July 3, 2019. Docket No. 1. On July 9,
2019, the Court ordered plaintiff to show cause why the case
should not be dismissed for lack of subject matter
jurisdiction. Docket No. 5 at 5. The Court noted that
plaintiff's allegations were insufficient to determine
whether the Court has jurisdiction over plaintiff's
claims because (1) plaintiff alleged her residency, rather
than her domicile, in an attempt to establish her own
citizenship; (2) plaintiff's allegations as to
defendants' citizenship were based “on information
and belief, ” which demonstrated a lack of affirmative
knowledge as to defendants' citizenship; (3) plaintiff
had failed to allege the domicile of Mr. Currier; (4)
plaintiff's allegation that Mr. McInnis owns a company in
Colorado was insufficient to establish his citizenship; and
(5) plaintiff had failed to establish what type of entity
defendant J.R. Towing is and had failed to adequately plead
its citizenship. Id. at 2-4.
filed her response to the Court's show cause order on
July 19, 2019. Docket No. 7. Plaintiff simultaneously filed a
Notice of Filing Amended Complaint and Jury Demand. Docket
No. 6. Plaintiff states that “[t]he Amended Complaint
and Jury Demand, attached to Plaintiff's Notice of Filing
Amended Complaint and Jury Demand as Exhibit 1,
satisfactorily allege[s] the citizenship of all Parties and
demonstrates that this Court does have subject matter
jurisdiction.” Docket No. 7 at 1, ¶ 4. In the
amended complaint, plaintiff states that she “is and
has been a citizen of the State of Washington, during all
relevant times.” Docket No. 6-1 at 1, ¶ 1. She
further states that “Defendant J.R. Towing, Inc. is a
registered Colorado Corporation, organized in the State of
Colorado, with its primary place of business at 109 Trinity
Lane, Pagosa Springs, CO 81147.” Id. at 2,
¶ 11. Finally, she has amended her allegations as to the
individual defendants to remove the introductory phrase
“[b]ased on information and belief” and now
alleges that Mr. Currier and Mr. McInnis are both citizens of
Colorado. Id. at 1, ¶¶ 3, 5.
the Court finds plaintiff's new allegations sufficient to
establish the citizenship of J.R. Towing and plaintiff,
Court is still unable to determine the citizenship of Mr.
Currier or Mr. McInnis. Although plaintiff has removed the
phrase “[b]ased on information and belief” and
now alleges that Mr. Currier is a citizen of Colorado, Docket
No. 6-1 at 1, ¶ 3, plaintiff has set forth no additional
evidence of Mr. Currier's citizenship beyond his
purported Colorado address, which was included in
plaintiff's original complaint. This amendment does not
convince the Court that plaintiff has obtained affirmative
knowledge as to Mr. Currier's citizenship and is
insufficient to allow the court to determine Mr.
Currier's citizenship. Cf. Bryant v. ABM Parking
Servs., 2017 U.S. Dist. LEXIS 41698, at *3-4 (C.D. Cal.
Mar. 21, 2017) (ruling that the mere deletion of
“information and belief” allegations, with
“no change in the nature of the case” and no
“subsequent pleadings or papers which might provide a
basis for a second removal” was insufficient to support
stated in the Court's first show cause order, 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. See
Docket No. 5 at 3-4. 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)). Merely amending the complaint to now allege that
Mr. Currier is a citizen of Colorado, with no evidentiary
basis for that allegation, is insufficient for plaintiff to
satisfy her burden of establishing the Court's
citizenship. 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) (“The party
seeking the exercise of jurisdiction in his favor ‘must
allege in his pleading the facts essential to show
plaintiff's amended complaint now alleges that
“Defendant J.D. McInnis is a citizen of
Colorado.” Docket No. 6-1 at 1, ¶ 5. To support
this allegation, plaintiff states that Mr. McInnis'
“address is 65 Square Top Circle, Pagosa Springs,
Colorado.” Id., ¶ 6. Plaintiff has also
removed any use of the phrase “based on information and
belief” in her allegations of Mr. McInnis'
citizenship. See Id. at 1-2.
reasons set out in the Court's first order to show cause,
this allegation is insufficient to determine Mr. McInnis'
citizenship. “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. Plaintiff's allegation that Mr.
McInnis has a Colorado address is insufficient to determine
whether 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.”); see also Reece v. AES Corp., 638
Fed.Appx. 755, 769 (10th Cir. 2016) (unpublished) (“[A]
person may own property in a state without either being a
state resident or intending to remain there.”).
the allegations are presently insufficient to allow the Court
to determine the citizenship of Mr. Currier and Mr. McInnis
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
that, on or before August 2, 2019, plaintiff
shall show cause why the case should not be dismissed due to
the Court's lack of subject matter jurisdiction.
Because plaintiff's allegation goes
to her own citizenship, the Court will credit the allegation
because it is not contradicted by the record. Cf.
Washington v. Hovensa LLC, 652 F.3d 340, 347 (3d Cir.
2011) (holding that district court should have considered
plaintiff's statement of intent to remain in purported
domicile in determining plaintiff's ...