United States District Court, D. Colorado
A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE
Court takes up this matter sua sponte on the Notice
of Removal [Docket No. 1] of defendant Albertson's, LLC
(“Albertson's”). Albertson's states that
the Court has subject matter jurisdiction over this lawsuit
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
28, 2009); see, e.g., GBForefront, L.P. v.
Forefront Mgmt. Grp., LLC, 888 F.3d 29, 33 (3d Cir.
2018) (finding, after “years of litigation” and
entry of judgment, that the record was insufficient to
establish federal jurisdiction).
Notice of Removal, Albertson's asserts that the Court has
diversity jurisdiction under 28 U.S.C. § 1332. Docket
No. 1 at 2, ¶ 6. 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).
September 19, 2019, Magistrate Judge Kathleen M. Tafoya
ordered Albertson's to show cause on or before October
10, 2019 why the case should not be remanded to the Pueblo
County District Court due to a lack of subject matter
jurisdiction. Docket No. 10. Specifically, the magistrate
judge noted that Albertson's had failed to allege the
citizenship of the members of Foothills Farm, RLLLP or of its
own members and, for this reason, she was unable to determine
whether complete diversity of citizenship exists.
Id.; see also Siloam Springs Hotel, L.L.C. v.
Century Surety 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 Court also notes that Albertson's
Notice of Removal contains insufficient allegations of
plaintiff's citizenship. Albertson's alleges that
“Plaintiff resides at 3810 290 Street, Oto IA
51004.” Docket No. 1 at 3, ¶ 10. How ever,
residency is not synonymous with 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)), 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
did not respond to the magistrate judge's order to show
cause. As a result, the Court finds that Albertson's has
failed to meet its burden of demonstrating that diversity of
citizenship exists and that the Court has subject matter
jurisdiction over this matter. See Radil v. Sanborn W.
Camps, Inc., 384 F.3d 1220, 1224 (10th Cir. 2004)
(“The party invoking federal jurisdiction bears the
burden of establishing such jurisdiction as a threshold
matter.”). Because Albertson's did not show cause
why the case should proceed and has failed to establish a
basis for removal, it is
that this matter is remanded to the District Court for the
County of Pueblo, Colorado, where the case was filed as case
number 2019CV30508. It is further