Trimarco v. Ergen

Filing 24

ORDER TO SHOW CAUSE by Judge Philip A. Brimmer on 04/16/2018. ORDERED that, on or before 5:00 p.m. on April 20, 2018, plaintiff shall show cause why this case should not be dismissed due to the Courts lack of subject matter jurisdiction. (sphil)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Philip A. Brimmer Civil Action No. 18-cv-00170-PAB MICHAEL C. TRIMARCO, Plaintiff, v. CHARLES E. ERGEN, III, Defendant. ORDER TO SHOW CAUSE The Court takes up this matter sua sponte on the complaint [Docket No. 1]. Plaintiff states that this Court has jurisdiction pursuant to 28 U.S.C. § 1332. 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). Plaintiff asserts that this Court has diversity jurisdiction under 28 U.S.C. § 1332. 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 the parties’ citizenship. The complaint states that plaintiff “is an individual and resident of the State of New York” and that defendant “is an individual, and upon information and belief, a resident of the State of Colorado.” Docket No. 1 at 1, ¶¶ 1-2. The complaint further alleges that the “Court has diversity jurisdiction in that the parties are residents of different states.” Id. at 2, ¶ 4. However, domicile, not residency or mailing address, is determinative of citizenship. 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 establishing diversity.”); see also Mississippi Band of Choctaw Indians v. 2 Holyfield, 490 U.S. 30, 48 (1989) (“‘Domicile’ is not necessarily synonymous with ‘residence,’ and one can reside in one place but be dom iciled in another.” (citations omitted)). Moreover, the Court reads plaintiff’s averment as to the citizenship of defendant, made “upon information and belief,” to mean that plaintiff does not have affirmative knowledge of defendant’s citizenship. Such unsupported allegations do not confer subject matter jurisdiction over this case. See Yates v. Portofino Real Estate Props. Co., LLC, No. 08-cv-00324-PAB-MJW, 2009 WL 2588833, at *3 (D. Colo. Aug. 17, 2009) (requiring plaintiff to “address the citizenship of each of [defendant’s] members without resorting merely to their ‘information and belief’ as to the same”); United States v. Pinkard Constr. Co., No. 09-cv-00491-PAB-MJW, 2009 WL 2338116, at *3 (D. Colo. July 28, 2009) (interpreting allegations based on “information and belief” to “mean that plaintiffs have no affirmative knowledge of a lack of diversity”). Because the Court is currently unable to determine the citizenship of the parties and whether the Court has jurisdiction, it is ORDERED that, on or before 5:00 p.m. on April 20, 2018, plaintiff shall show cause why this case should not be dismissed due to the Court’s lack of subject matter jurisdiction. DATED April 16, 2018. BY THE COURT: s/Philip A. Brimmer PHILIP A. BRIMMER United States District Judge 3

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