Estate v. Apple American Group, LLC. et al

Filing 40

ORDER. ORDERED that this case is DISMISSED without prejudice for lack of subject matter jurisdiction by Judge Philip A. Brimmer on 02/25/15. (jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 14-cv-02785-PAB
ALEJANDRO SILVEYRA, pro se, sui juris,
Plaintiff,
v.
APPLE AMERICAN GROUP, LLC., et al., and
DAYMON INTERACTIONS et al.,
Defendants.

ORDER

This matter is before the Court on the Proof of Jurisdiction [Docket No. 39] filed
by plaintiff. Plaintiff filed his Proof of Jurisdiction in response to the Court’s Order to
Show Cause [Docket No. 37], which required plaintiff to show cause why this case
should not be dismissed for lack of subject matter jurisdiction.
The Court construes the amended complaint as alleging that this Court has
subject matter jurisdiction pursuant to 28 U.S.C. § 1332. Docket No. 29 at 3 (“T his
complaint suffices the controversy amount requirement of $75,000 for a diversity
jurisdiction case.”). Plaintiff does not disagree. Section 1332(a)(1) states: “The 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.” In 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. 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).
On February 9, 2015, the Court ordered plaintiff to show cause why this case
should not be dismissed for lack of subject matter jurisdiction due to plaintiff’s failure to
sufficiently allege (1) plaintiff’s citizenship, (2) the citizenship of defendant Apple
American Group, LLC (“Apple American”), and (3) the citizenship of defendant Daymon
Interactions Consumer Experience Marketing, Inc. (“Daymon”). Docket No. 37 at 3-5.
The Court first turns to plaintiff’s citizenship. The Court’s February 9 order noted
that plaintiff’s allegation that he is “under no political affiliation or citizenship of any
kind,” Docket No. 29 at 3, would appear to defeat diversity jurisdiction. Docket No. 37
at 3 (citing Kantor v. Wellesley Galleries, Ltd., 704 F.2d 1088, 1092 (9th Cir. 1983).
The Court found that plaintiff had otherwise failed to establish his citizenship for
jurisdictional purposes. Id. In response, plaintiff first argues that the Court misapplied
Kantor. Docket No. 39 at 2. Plaintiff contends that, in Kantor, the Soviet government
revoked the plaintiff’s citizenship, which is different from the present case. Docket No.
39 at 2. Plaintiff does not explain why this difference is relevant or otherwise helps to
establish plaintiff’s citizenship. No relevance is apparent to the Court. Plaintiff argues
that he “never said he did not have any ‘citizenship’ of a State, but only really that their
exist, and being how, there is no prima facie proof of any sworn-out oath of alliance
and/or prima facie proof of any protection from an State toward the plaintiff.” Docket
No. 39 at 3. Although plaintiff claims that his intent was not to disavow citizenship of a

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state, the burden is on plaintiff to establish his citizenship, which he has failed to do.
See Merida Delgado v. Gonzales, 428 F.3d 916, 919 (10th Cir. 2005) (“the party
invoking federal jurisdiction bears the burden of proof”). Plaintiff asserts that he “was
assigned a Mexican Nationality at birth.” Docket No. 39 at 3. To the extent plaintiff’s
argument could be construed as asserting jurisdiction under § 1332(a)(2), plaintiff fails
to allege sufficient facts upon which the Court can determine that he is a “citizen[] or
subject[] of a foreign state.” Although plaintiff’s allegations suggest that he was born a
citizen of Mexico, this is insufficient to establish his current citizenship. See Raphael v.
Hertzberg, 470 F. Supp. 984, 986 (C.D. Cal. 1979) (ruling that naturalized United States
citizen could not invoke § 1332(a)(2) by asserting that, prior to gaining United States
citizenship, he was a citizen of the United Kingdom). Plaintiff’s response is therefore
insufficient to establish his citizenship for jurisdictional purposes.
Even if plaintiff successfully established his own citizenship, plaintiff falls short of
establishing the citizenship of Apple American. The Court’s order to show cause stated
that, because plaintiff alleged that Apple American was a limited liability corporation
(“LLC”), plaintiff was required to establish the citizenship of each of Apple American’s
constituent members. Docket No. 37 at 4. Plaintiff responds that Apple American is
owned jointly by “Flynn Holdings” and the “Ontario Teachers’ Pension Plan.” Docket
No. 39 at 1. Regarding Flynn Holdings, plaintiff asserts only that Greg Flynn is the
founder and CEO of Flynn Holdings and that Mr. Flynn is a United States citizen. Id.
Plaintiff does not indicate how Flynn Holdings is organized or who owns the entity.
Moreover, in support of his assertion regarding Apple American’s constituent entities,
plaintiff relies upon a news article attached to his response, which states that “Flynn
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Restaurant Group L.P.” – not Flynn Holdings – is a part owner of Apple American. Id.
at 4. Plaintiff does not explain whether Flynn Holdings and Flynn Restaurant Group
L.P. are the same entity. In any event, the article indicates that Flynn Restaurant Group
L.P. is a limited partnership with multiple members, id., but plaintiff does not attempt to
establish the citizenship of such members. See Zambelli Fireworks Mfg. Co v. Wood,
592 F.3d 412, 420 (3d Cir. 2010) (“the citizenship of unincorporated associations must
be traced through however many layers of partners or members there may be”)
(internal quotation marks omitted). Plaintiff also attaches a printout from the California
Secretary of State’s website containing information regarding “Flynn Properties, Inc.”
Id. at 11. However, it is not clear how, if at all, Flynn Properties, Inc. is connected to
Apple American, and plaintiff does not indicate the location of Flynn Properties, Inc.’s
principal place of business. See § 1332(c)(1). Plaintiff also fails to provide information
regarding the organization of the Ontario Teachers’ Pension Plan sufficient to
determine its citizenship. Plaintiff’s response therefore fails to establish the citizenship
of Apple American’s constituent members.
Plaintiff has not shown cause sufficient to meet his burden of establishing his
citizenship and the citizenship of Apple American.1 As a result, the Court is without
assurance that it has subject matter jurisdiction over this case. See Cunningham, 427
F.3d at 1245. For the foregoing reasons, it is
ORDERED that this case is DISMISSED without prejudice for lack of subject
matter jurisdiction.
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As a result, the Court need not address whether plaintiff has established
Daymon’s citizenship.
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DATED February 25, 2015.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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