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's Verified Complaint [Docket No. 1]. Plaintiff
states that the Court has subject matter jurisdiction over
this lawsuit pursuant to 28 U.S.C. § 1332. Docket No. 1
at 3, ¶ 5.
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). The facts
presently alleged are insufficient to establish the
individual defendants' citizenship.
states that, “[o]n information and belief, Mr. Asselin
is a citizen of Colorado.” Docket No. 1 at 2, ¶ 2.
He further alleges that, “[o]n information and belief,
Mr. Coleman is a citizen of Colorado.” Id.,
¶ 3. The Court reads plaintiff's averments on
“information and belief” to mean that plaintiff
does not have affirmative knowledge of Mr. Asselin's or
Mr. Coleman's citizenship. 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 (finding allegations based on
“information and belief” insufficient to confer
subject matter jurisdiction).
plaintiff's allegations are presently insufficient to
allow the Court to determine the citizenship of the
individual defendants 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 October 21, 2019,
plaintiff shall show cause why this case should not be
dismissed due to the Court's lack of subject matter
Plaintiff has also named as a nominal
defendant U.S. Land Professional, Inc. (“USLP”)
Docket No. 1 at 1. “The Supreme Court [has] not yet
decided whether a corporation in a shareholder derivative
suit” must be considered in determining diversity
jurisdiction. Knop v. Mackall, 645 F.3d 381, 383
(D.C. Cir. 2011). Federal courts appear to be split on the
issue. See Kernaghan v. Franklin, 2008 WL 4450268,
at *1 n.1 (S.D.N.Y. Sept. 29, 2008) (disregarding citizenship
of nominal corporate defendant in shareholder derivative
lawsuit for purposes of diversity jurisdiction analysis);
see also Racetime Investments, LLC v. Moser, 2013 WL
987834, at *2 (E.D. Va. Mar. 8, 2013) (stating that, when
nominal corporate party is antagonistic to shareholder
plaintiff, district courts may realign the parties according
to their real interests so that nominal corporate party's
citizenship does not destroy diversity jurisdiction). Here,
whether or not USLP's citizenship is considered, USLP
would not destroy diversity jurisdiction because plaintiff