Gile et al v. Schmidt et al

Filing 20

ORDER TO SHOW CAUSE. ORDERED that, on or before 5:00 p.m. on February 15, 2017, plaintiffs shall show cause why this case should not be dismissed due to the Courts lack of subject matter jurisdiction. Signed by Judge Philip A. Brimmer on 02/02/17. (jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 16-cv-02498-PAB
KENNETH LEE GILE,
CHARLENE DIANNE GILE, and
THE LIVING TRUST OF KENNETH LEE GILE AND CHARLENE DIANNE GILE,
Plaintiffs,
v.
GARY L. SCHMIDT and
SHELLY L. SCHMIDT,
Defendants.

ORDER TO SHOW CAUSE

The Court takes up this matter sua sponte on plaintiffs’ complaint [Docket No. 1].
Plaintiffs state that the Court has subject matter jurisdiction over this lawsuit pursuant to
28 U.S.C. § 1332. Docket No. 1 at 1-2, ¶¶ 1-5.
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 ex ists, 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. See Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir. 1995),
abrogated on other grounds by Dart Cherokee Basin Operating Co., LLC v. Ow ens, 135

S. Ct. 547 (2014) (“[I]f the parties fail to raise the question of the existence of
jurisdiction, the federal court has the duty to raise and resolve the matter.”). Second,
“[s]ubject matter jurisdiction cannot be conferred or waived by consent, estoppel, or
failure to challenge jurisdiction early in the proceedings.” Id. Finally, delay in
addressing the issue only compounds the problem if it turns out that, despite much time
and expense having been dedicated to a case, a lack of jurisdiction causes it to be
dismissed or remanded regardless of the stage it has reached. 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).
It is well established that “[t]he 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). Plaintif fs invoke 28 U.S.C. § 1332
as the basis for this Court’s diversity jurisdiction. Docket No. 1 at 2, ¶ 5. 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.” The facts as presently
averred, however, do not provide sufficient information regarding the citizenship of The
Living Trust of Kenneth Lee Gile and Charlene Dianne Gile (“the trust”).
Although the trust is identified in the case caption as a party, the complaint
makes no reference to the citizenship of the trust. While, for diversity purposes, “a
corporation shall be deemed to be a citizen of every State and foreign state by which it
has been incorporated and of the State or foreign state where it has its principal place
of business,” 28 U.S.C. § 1332(c)(1), “Congress never expanded this grant of
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citizenship to include artificial entities other than corporations.” Americold Realty Trust
v. ConAgra Foods, Inc., --- U.S. ----, 136 S. Ct. 1012, 1015 (2016).
The complaint provides no information regarding the nature of the trust (i.e.,
what type of unincorporated entity it is), the citizenship of its trustees, or the citizenship
of the trust’s beneficiaries. See Americold, 136 S. Ct. at 1016; Wang by & through
Wong v. New Mighty U.S. Trust, 843 F.3d 487, 493 (D.C. Cir. 2016); Zoroastrian Ctr. &
Darb-E-Mehr of Metro. Wash., D.C. v. Rustam Guiv Found. of N.Y., 822 F.3d 739, 749
(4th Cir. 2016). As a result, the Court is unable to determ ine the citizenship of the trust
and whether the Court has subject matter jurisdiction.
For the foregoing reasons, it is ORDERED that, on or before 5:00 p.m. on
February 15, 2017, plaintiffs shall show cause why this case should not be dismissed
due to the Court’s lack of subject matter jurisdiction.

DATED February 1, 2017.
BY THE COURT:

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

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