Van Essen Homes, LLC et al v. Builders Insurance Group, Inc. et al

Filing 7

ORDER TO SHOW CAUSE by Judge Philip A. Brimmer on 11/28/2017. ORDERED that, on or before 5:00 p.m. on December 11, 2017, defendants Builders Insurance Group, Inc., Vinings Insurance Group, n/k/a National Builders Insurance Company, and Association Insurance Company, n/k/a American Builders Insurance Company, shall show cause why this case should not be remanded due to the Courts lack of subject matter jurisdiction. (sphil, ) Modified on 11/28/2017 to correct docket text. (sphil, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 17-cv-02816-PAB
VAN ESSEN HOMES, LLC, a Colorado Limited Liability Company, and
LOREN VAN ESSEN,
Plaintiffs,
v.
BUILDERS INSURANCE GROUP, INC., a Georgia Corporation,
VININGS INSURANCE GROUP, n/k/a National Builders Insurance Company, a
Delaware Corporation, and
ASSOCIATION INSURANCE COMPANY, n/k/a American Builders Insurance
Company, a Delaware Corporation,
Defendants.

ORDER TO SHOW CAUSE

The Court takes up this matter sua sponte on defendants’ notice of removal
[Docket No. 1]. Defendants state that the Court has subject matter jurisdiction over this
lawsuit pursuant to 28 U.S.C. § 1332(a). Docket No. 1 at 2, ¶ 4.
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. 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 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. 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).
“The 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). Defendants assert that this Court has diversity jurisdiction under
28 U.S.C. § 1332(a). Pursuant to that section, “district courts shall hav e 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 plaintiffs’ citizenship.
Defendants’ notice of removal states that Van Essen Homes, LLC is a limited liability
company of which Loren Van Essen and Denise Van Essen are the sole
managers/members. Docket No. 1 at 3, ¶ 7. The notice further states that both Loren
Van Essen and Denise Van Essen “reside in Colorado.” Id. But “[a]n individual’s
residence is not equivalent to his domicile and it is domicile that is relevant for
determining citizenship.” Siloam Springs Hotel, L.L.C., v. Century Sur. Co., 781 F.3d

2

1233, 1238 (10th Cir. 2015). Accordingly, the Court cannot determine the citizenship of
plaintiffs or its own jurisdiction without additional information regarding where Loren Van
Essen and Denise Van Essen are domiciled. See id. at 1237-38 (noting that the
citizenship of an unincorporated association depends on the citizenship of all of its
members).1
For the foregoing reasons, it is
ORDERED that, on or before 5:00 p.m. on December 11, 2017, defendants
Builders Insurance Group, Inc., Vinings Insurance Group, n/k/a National Builders
Insurance Company, and Association Insurance Company, n/k/a American Builders
Insurance Company, shall show cause why this case should not be remanded due to
the Court’s lack of subject matter jurisdiction.

DATED November 28, 2017.
BY THE COURT:

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

1

Plaintiffs’ complaint does not rectify the deficiency in defendants’ allegations.
Like defendants’ notice of removal, the complaint merely alleges that Loren Van Essen
is “an individual residing in the State of Colorado.” Docket No. 4 at 2, ¶ 2.
3