Viner v. Smith & Nephew Inc.

Filing 4

ORDER TO SHOW CAUSE. ORDERED that, on or before 5:00 p.m. on February 17, 2017, plaintiff shall show cause why this case should not be dismissed due to the Court's lack of subject matter jurisdiction. Signed by Judge Philip A. Brimmer on 02/07/17. (jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 17-cv-00334-PAB
CAROL A. VINER,
Plaintiff,
v.
SMITH & NEPHEW, INC., a Tennessee Corporation,
Defendant.

ORDER TO SHOW CAUSE

The Court takes up this matter sua sponte on plaintiff’s 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 1-2, ¶ 3.
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 f invokes 28 U.S.C. § 1332
as the basis for this Court’s diversity jurisdiction. Docket No. 1 at 1-2, ¶ 3. 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
Smith & Nephew, Inc. (“Smith & Nephew”).
The complaint identifies Smith & Nephew as “a resident and/or corporation with
its principal place of residence and/or business in a state other than the State of
Colorado.” Docket No. 1 at 1, ¶ 2. This information is insufficient because it does not
provide the Court with the ability to assess the jurisdictional basis independently. See
Pinkard Constr., 2009 WL 2338116, at *3; Affordable Communities of Mo. v. EF & A

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Capital Corp., 2008 WL 4966731, *2-3 (E.D. Mo. Nov.19, 2008) (statement that none of
the unidentified members of an LLC was a citizen of a particular state was insufficient to
establish diversity of citizenship). 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); see Carden v. Arkoma Assocs., 494 U.S. 185, 196
(1990). A corporation’s “principal place of business” is “the place where a corporation’s
officers direct, control, and coordinate the corporation’s activities.” Hertz Corp. v.
Friend, 559 U.S. 77, 92-93 (2010).
Moreover, while the caption of the complaint states that Smith & Nephew is a
Tennessee corporation, Docket No. 1 at 1, and the com plaint claims that Smith &
Nephew has its headquarters in England, id. at 2, ¶ 5, this is inconsistent with how
Smith & Nephew has characterized its own citizenship in another case in this district.
See Deborah Smith v. Smith & Nephew, Inc., 16-cv-00147-RBJ, Docket No. 1.
For the foregoing reasons, it is ORDERED that, on or before 5:00 p.m. on
February 17, 2017, plaintiff shall show cause why this case should not be dismissed
due to the Court’s lack of subject matter jurisdiction.

DATED February 7, 2017.
BY THE COURT:

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

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