Standard Retail LLC et al v. Mills et al

Filing 15

ORDER TO SHOW CAUSE by Judge Philip A. Brimmer on 02/26/208. ORDERED that, on or before 5:00 p.m. on March 6, 2018, defendants Kiyanna Mills and MOD Digital, LLC shall show cause why this case should not be remanded due to the Court's lack of subject matter jurisdiction. (sphil, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 18-cv-00403-PAB
STANDARD RETAIL, LLC and
AARON WESTPHAL,
Plaintiffs,
v.
KIYANNA NICOLE MILLS,
MOD DIGITAL, LLC,
JOCK DAVID ROY PURTLE, and
DIGITAL EXITS, LLC,
Defendants.

ORDER TO SHOW CAUSE

The Court takes up this matter sua sponte on the Notice of Removal [Docket No.
1] filed by Kiyanna Mills and MOD Digital, LLC (the “removing defendants”). Removing
defendants state that the Court has subject m atter jurisdiction over this lawsuit pursuant
to 28 U.S.C. § 1332. Docket No. 1 at 2, ¶ 10.
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 & Cty. 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 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). Rem oving defendants invoke 28
U.S.C. § 1332 as the basis for this Court’s diversity jurisdiction. Docket No. 1 at 2,
¶ 10. 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 Standard Retail, LLC, MOD Digital, LLC, and Digital Exits, LLC
(collectively, “the LLC parties”).
The notice of removal identifies the LLC parties’ states of organization and
principal places of business. Docket No. 1 at 2, ¶¶ 8, 9. 1 None of this information is
1

The complaint alleges the same irrelevant information. See Docket No. 1-1 at
7-8, ¶¶ 1-2.
2

relevant to the LLC parties’ citizenship. 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); see Carden v. Arkoma Assocs., 494 U.S. 185, 196
(1990),2 these considerations are irrelevant to the determination of the citizenship of an
LLC. See Siloam Springs Hotel, L.L.C. v. Century Sur. Co., 781 F.3d 1233, 1237-38
(10th Cir. 2015) (“[I]n determining the citizenship of an unincorporated association for
purposes of diversity, federal courts must include all the entities’ members.”).
Furthermore, when an entity consists of multiple tiers of ownership and control,
the entire structure must be considered for diversity purposes. In other words, when an
entity is composed of multiple layers of constituent entities, the citizenship
determination requires an exploration of the citizenship of the constituent entities as far
down as necessary to unravel fully the citizenship of the entity before the court. See
U.S. Advisor, LLC v. Berkshire Prop. Advisors, No. 09-cv-00697-PAB-CBS, 2009 WL
2055206, at *2 (D. Colo. July 10, 2009); SREI-Miami, LLC v. Thomas, No. 08-cv-00730MSK-BNB, 2008 WL 1944322, at *1 (D. Colo. May 2, 2008); see also Hicklin Eng’g,
L.C. v. Bartell, 439 F.3d 346, 347 (7th Cir. 2006); Turner Bros. Crane & Rigging, LLC v.
Kingboard Chem. Holding Ltd., 2007 WL 2848154, at *4-5 (M.D. La. Sept. 24, 2007); cf.
Carden, 494 U.S. at 195 (“[W]e reject the contention that to determine, for diversity
purposes, the citizenship of an artificial entity, the court may consult the citizenship of

2

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).
3

less than all of the entity’s members.”).
Removing defendants have not identified the members and the citizenship of the
LLC parties. See Docket No. 1.3 The Court is therefore unable to determine the
citizenship of the LLC parties and whether the Court has jurisdiction. See United States
ex rel. General Rock & Sand Corp. v. Chuska Dev. Corp., 55 F.3d 1491, 1495 (10th Cir.
1995) (“The party seeking the exercise of jurisdiction in his favor must allege in his
pleading the facts essential to show jurisdiction.”) (citations and internal quotation
marks omitted). For the foregoing reasons, it is
ORDERED that, on or before 5:00 p.m. on March 6, 2018, defendants Kiyanna
Mills and MOD Digital, LLC shall show cause why this case should not be remanded
due to the Court’s lack of subject matter jurisdiction.

DATED February 26, 2018.
BY THE COURT:

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

3

This Court has previously noted that, “[w]hile various state legislatures have
decided to permit the members of LLCs to remain anonymous to the public at large,
Congress has not created an exception to the requirements of diversity jurisdiction
which would allow the members of LLCs to remain anonymous in federal court.” U.S.
Advisor, LLC, 2009 WL 2055206, at *3 (citing Carden, 494 U.S. at 196).
4