Trimarco v. Ergen
Filing
35
ORDER TO SHOW CAUSE by Judge Philip A. Brimmer on 05/17/2018. ORDERED that, on or before 5:00 p.m. on May 30, 2018, plaintiff shall show cause why this case should not be dismissed due to the Court's lack of subject matter jurisdiction. Plaintiffs' Second MOTION for Leave to Respond to 32 is GRANTED. Plaintiff's Unopposed MOTION for Leave to File Supplemental Response, filed by Michael C Trimarco 29 is GRANTED. ORDERED that plaintiff 's response to the Court's show cause order shallspecifically address the impact of the following evidence on the Court's determination of defendant's domicile: (1) defendant's residency at the same address in Switzerland sin ce 2009; (2) defendant's possession of a Swiss residency card since 2009; (3) defendants possession of a Swiss driver's license since 2009; (4) defendant's renunciation of U.S. citizenship in 2011; and (5) the suggestion, in the 2016 letter restoring defendant's U.S. citizenship, that defendant sought restoration of his U.S. citizenship in order to visit his ailing grandmother. (sphil, )
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
This matter comes before the Court on Plaintiff’s Supplemental Memo of Law in
Response to Court’s Order to Show Cause Relating to Subject Matter Jurisdiction
[Docket No. 30] and Plaintiff’s Second Supplemental Memo of Law in Response to
Court’s Order to Show Cause Relating to Subject Matter Jurisdiction [Docket No. 33].
Plaintiff asserts that this Court has subject matter jurisdiction pursuant to 28 U.S.C.
§ 1332. Docket No. 1 at 2, ¶ 4.
On April 16, 2018, the Court ordered plaintiff to show cause why this case should
not be dismissed based on plaintiff’s failure to establish where the parties are domiciled
for purposes of diversity jurisdiction. Docket No. 24 at 2-3. Plaintiff filed a response to
the show cause order on April 20, 2018, claiming that he “is a United States citizen and
a citizen of New York” and that defendant renounced his United States citizenship in
2011 and became a citizen of the Federation of Saint Christopher and Nevis. Docket
No. 25 at 2. Before the Court ruled on the sufficiency of plaintiff’s new allegations,
plaintiff filed two supplemental responses to the Court’s show cause order. See Docket
Nos. 30, 33.1 In the first supplemental response, plaintiff states that documents filed by
defendant in conjunction with his pending motion to dismiss indicate that defendant’s
United States citizenship was restored in 2016 and given retroactive effect to
September 14, 2011. Docket No. 30 at 2. Although plaintiff does not dispute that
defendant currently resides overseas, see id. at 2 (“Chase maintains that he resides in
Switzerland”), plaintiff contends that diversity jurisdiction exists because defendant has
never relinquished his Colorado domicile. Id. at 3. Plaintiff cites three facts to support
this argument: (1) defendant sought restoration of his United States citizenship in 2016;
(2) defendant went through “extraordinary efforts to obtain sole custody of his
daughter,” who now lives with his parents in Colorado; and (3) defendant moved to
Switzerland for the sole purpose of obtaining medical treatment. Id. at 2.
In plaintiff’s second supplemental response, filed on May 9, 2018, plaintiff
contends that defendant has been residing at 5225 Bow Mar Drive, Littleton, Colorado,
for the past several months with his “one-time” fiancée who recently gave birth to
defendant’s second child. Docket No. 33 at 2. Plaintiff asserts that these newly
discovered facts demonstrate defendant’s intent to remain domiciled in Colorado. Id. at
3.
Under 28 U.S.C. § 1332(a)(1)-(2), a district court has “original jurisdiction of all
civil actions where the matter in controversy exceeds the sum or value of $75,0000,
1
Plaintiff also filed motions for leave to file the supplemental responses. See
Docket Nos. 29, 32. The Court grants the motions and accepts plaintiff’s supplemental
responses as filed.
2
exclusive of interests and costs, and is between [ ] citizens of different States” or
“citizens of a State and citizens or subjects of a foreign state.” However, a “United
States citizen domiciled in a foreign country” is neither a citizen of a state nor a “citizen
or subject of a foreign state” for purposes of § 1332. Jones v. Dalrymple, 679 F. App’x
668, 669 (10th Cir. 2017) (unpublished) (internal quotation marks and brackets omitted)
(citing Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 828-29 (1989)). Instead,
such a person is considered “stateless” and cannot sue or be sued in f ederal court
based on diversity jurisdiction. Swiger v. Allegheny Energy, Inc., 540 F.3d 179, 184 (3d
Cir. 2008); see also Newman-Green, Inc., 490 U.S. at 829 (finding that defendant’s
“‘stateless’ status” and United States citizenship destroyed complete diversity under
§ 1332). Plaintiff admits that defendant is a citizen of the United States. See Docket
No. 30 at 2; Docket No. 33 at 2. The Court’s subject matter jurisdiction over this case
thus depends on whether defendant is also domiciled abroad.
The general rule is that “[o]ne acquires a ‘domicile of origin’ at birth, and that
domicile continues until a new one (a ‘domicile of choice’) is acquired.” Mississippi
Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989); see also Middleton v.
Stephenson, 749 F.3d 1197, 1200 (10th Cir. 2014) (noting presumption that “domicile,
once established, remains the same”) (citing Mitchell v. United States, 88 U.S. 350, 353
(1874)). For a person to “effect a change in domicile, two things are indispensable:
First, residence in a new domicile, and second, the intention to remain there
indefinitely.” Smith v. Cummings, 445 F.3d 1254, 1260 (10th Cir. 2006).
Plaintiff alleges that defendant’s childhood domicile was Colorado. See Docket
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No. 30 at 3. This allegation is supported by the record. See Docket No. 14-1 at 3, ¶ 7
(affidavit of Christopher McAdam) (stating that “5330 Lakeshore Drive was Chase’s
childhood home); Docket No. 25-1 at 2, ¶ 7 (declaration of Michael Trimarco) (stating
that defendant “grew up at 5330 Lakeshore Drive in Littleton, Colorado” and that
defendant’s parents continue to reside there). Plaintiff further asserts that defendant
continues to be domiciled in Colorado because “he never established a permanent
domicile in Switzerland.” Docket No. 30 at 3. As evidence of this fact, plaintiff cites
defendant’s decision to seek restoration of his United States citizenship in 2016, his
daughter’s residence at the 5330 Lakeshore Drive address, his fiancée’s residence at a
home directly behind his parents’ Lakeshore Drive address with defendant’s second
child, and defendant’s limited purpose for moving to Switzerland – to seek medical
treatment. See id. at 2-3; Docket No. 33 at 3. 2
Although plaintiff’s allegations might ordinarily entitle him to a presumption that
defendant has not changed his domicile, other evidence in the record undermines that
conclusion. See Middleton, 749 F.3d at 1200 (presumption that party’s domicile
remains the same can be rebutted by the production of “sufficient evidence suggesting
that domicile has changed”). For example, defendant has submitted evidence in
support of his pending motion to dismiss showing that he has lived at the same address
2
Plaintiff also notes defendant’s current residence in Colorado, but does not
specifically argue that this demonstrates defendant’s intent to remain domiciled in the
state. Docket No. 33 at 2-3. In any event, this fact does not cure plaintiff’s failure to
address the evidence suggesting that defendant is domiciled overseas. Assuming
defendant established a domicile in Switzerland, his presence in Colorado for the past
several months would be insufficient, standing alone, to effect a change in domicile.
See Smith, 445 F.3d at 1260 (noting that an intention to remain domiciled in a particular
place is an indispensable element of changing domicile).
4
in Switzerland since 2009, holds a Swiss residency card and driver’s license, and works
for a Swiss company. See Docket No. 27-1 at 2, ¶ 3; Docket No. 27-2 at 2, ¶¶ 3-4, 6;
see also Middleton, 749 F.3d at 1201 (citing a party’s current residence, place of
employment, and driver’s license as factors to be considered in determining party’s
domicile). Additionally, plaintiff presented evidence in his initial response to the Court’s
show cause order that defendant renounced his United States citizenship in 2011 and
obtained citizenship in the Federation of Saint Christopher and Nevis the following year.
See Docket No. 25 at 2; Docket No. 25-1 at 2, ¶ 8; Docket No. 25-4 at 7. Althoug h
defendant’s U.S. citizenship has since been restored, his decision to obtain citizenship
in a foreign country is inconsistent with a finding that defendant has “never established
a permanent domicile” outside of Colorado. See Docket No. 30 at 3. Finally, the
August 2016 letter restoring defendant’s citizenship status suggests that it was the
failing health of defendant’s grandmother, not his desire to permanently return to the
United States, that prompted defendant’s request for restoration of citizenship. See
Docket No. 27-4 at 2 (“Our office takes note of your request for expedited adjudication
due to the failing health of your grandmother . . . .”). Plaintiff has not addressed the
impact of this evidence on the determination of defendant’s domicile. Because the
evidence rebuts plaintiff’s assertion that defendant has not established a permanent
domicile outside of Colorado, plaintiff’s allegations are presently insufficient to establish
subject matter jurisdiction.
Plaintiff alternatively requests an opportunity to conduct jurisdictional discovery
on the issue of defendant’s domicile. Docket No. 30 at 3 (requesting discovery of “the
evidentiary basis upon which Chase’s citizenship was reinstated,” “Chase’s travel
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records” to and from Colorado, and “Chase’s intent to be domiciled in Colorado”);
Docket No. 33 at 4 (same). While a district court has the authority to permit discovery
in order for a party to prove diversity jurisdiction, such discovery is discretionary. See
Abrego Abrego v. The Dow Chem. Co., 443 F.3d 676, 691 (9th Cir. 2006) (where party
invoking federal jurisdiction has “failed to present to the district court any pleading,
evidence, or admission that establishes that it is more likely than not that jurisdiction
lies,” it is “well within the court’s discretion to remand to state court rather than ordering
jurisdictional discovery, with the knowledge that later-discovered facts may prompt a
second attempt at removal”). Plaintiff does not argue that the denial of jurisdictional
discovery will result in prejudice. See Sizova v. Nat’l Inst. of Standards & Tech., 282
F.3d 1320, 1326 (10th Cir. 2002) (stating that “a refusal to grant [jurisdictional]
discovery constitutes an abuse of discretion if the denial results in prejudice to a
litigant”). Accordingly, the Court declines plaintiff’s request. To permit jurisdictional
discovery in this case would undermine the well-established rule that “[t]he party
invoking federal jurisdiction bears the burden of establishing such jurisdiction as a
threshold matter.” See Radil, 384 F.3d at 1224; see also Lowery v. Ala. Power Co.,
483 F.3d 1184, 1216 (11th Cir. 2007) (“[S]hould the plaintif f request leave to conduct
discovery to support its assertion that the case is properly before the court, the court
would deny such a request. In such a situation, the court would not reserve ruling on
the motion to dismiss in order to allow the plaintiff to look for what the plaintiff should
have had – but did not – before coming through the courthouse doors, even though the
court would have the inherent power to do so.”).
Because the Court is presently unable to determine defendant’s citizenship and
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whether the Court has subject matter jurisdiction, it is
ORDERED that Plaintiff’s Unopposed Motion to File a Supplemental Response
to the Court’s Order to Show Cause Regarding Subject Matter Jurisdiction [Docket No.
29] is GRANTED. It is further
ORDERED that Plaintiff’s Second Unopposed Motion to File a Supplemental
Response to the Court’s Order to Show Cause Regarding Subject Matter Jurisdiction
[Docket No. 32] is GRANTED. It is further
ORDERED that, on or before 5:00 p.m. on May 30, 2018, plaintiff shall show
cause why this case should not be dismissed due to the Court’s lack of subject matter
jurisdiction. It is further
ORDERED that plaintiff’s response to the Court’s show cause order shall
specifically address the impact of the following evidence on the Court’s determination of
defendant’s domicile: (1) defendant’s residency at the same address in Switzerland
since 2009; (2) defendant’s possession of a Swiss residency card since 2009; (3)
defendant’s possession of a Swiss driver’s license since 2009; (4) defendant’s
renunciation of U.S. citizenship in 2011; and (5) the suggestion, in the 2016 letter
restoring defendant’s U.S. citizenship, that defendant sought restoration of his U.S.
citizenship in order to visit his ailing grandmother.
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DATED May 17, 2018.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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