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
Atlantic Casualty Insurance Company's Complaint Seeking
Declaratory Judgment [Docket No. 1]. Plaintiff asserts that
this Court has jurisdiction pursuant to 28 U.S.C. §
1332. Docket No. 1 at 2, ¶ 4.
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
diversity purposes, 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. 2015)
(“[I]n determining the citizenship of an unincorporated
association for purposes of diversity, federal courts must
include all the entities' members.”). The facts
presently alleged are insufficient to establish the
citizenship of defendant JPC Construction, LLC.
complaint alleges that, “[u]pon information and belief,
the sole member of JPC Construction is Jeanene St. Aubin, who
is a citizen of Colorado, residing in Grand Junction,
Colorado.” Docket No. 1 at 1, ¶ 2. This allegation
is insufficient to establish defendant's citizenship.
First, the Court reads defendant's averments “upon
information and belief” to mean that plaintiff does not
have affirmative knowledge that Jeanene St. Aubin is a
member, or is the only member, of JPC Construction, LLC. 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 diversity”);
Carden v. Arkoma Assocs., 494 U.S. 185, 192 (1990)
(“We have never held that an artificial entity, suing
or being sued in its own name, can invoke the diversity
jurisdiction of the federal courts based on the citizenship
of some but not all of its members.”).
even assuming that Jeanene St. Aubin is a member, and is the
only member, of JPC Construction, LLC, plaintiff has failed
to establish this individual's citizenship.
“[D]omicile is established by physical presence in a
place in connection with a certain state of mind concerning
one's intent to remain there.” Mississippi Band
of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989).
Plaintiff's allegation that “[u]pon information and
belief . . . [Jeanene St. Aubin] is a citizen of
Colorado” indicates a lack of affirmative knowledge as
to whether Jeanene St. Aubin is a citizen of Colorado.
Further, assuming that she resides in Grand Junction,
Colorado, see Docket No. 1 at 1, ¶ 2, this is
also insufficient to determine her citizenship. Residency is
not synonymous with domicile, see Holyfield, 490
U.S. at 48 (“‘Domicile' is not necessarily
synonymous with ‘residence,' and one can reside in
one place but be domiciled in another.”) (citations
omitted)), and 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
establishing diversity.”); see also Reece v. AES
Corp., 638 Fed.Appx. 755, 769 (10th Cir. 2016)
(unpublished) (“[M]ere property ownership in a state
does not necessarily equate to citizenship in that state; 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 defendant JPC Construction,
LLC, 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 30, 2019,
plaintiff Atlantic Casualty Insurance Company shall show
cause why this case should not be dismissed due to ...