Hernandez v. Allstate Fire and Casualty Insurance Company

Filing 7

ORDER TO SHOW CAUSE by Judge Philip A. Brimmer on 02/26/2018. ORDERED that, on or before 5:00 p.m. on March 8, 2018, plaintiff Johnathan Hernandez shall show cause why this case should not be dismissed 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-00429-PAB
JOHNATHAN HERNANDEZ,
Plaintiff,
v.
ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY,
Defendants.

ORDER TO SHOW CAUSE

The Court takes up this matter sua sponte on the complaint [Docket No. 1] filed
by plaintiff Johnathan Hernandez. Plaintiff claims that the Court has subject matter
jurisdiction over this lawsuit pursuant to 28 U.S.C. § 1332. Docket No. 1 at 1, ¶ 5.
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. See Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir. 1995) (“[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.”), abrogated on other grounds by Dart Cherokee Basin

Operating Co., LLC v. Owens, 135 S. Ct. 547 (2014). Second, “[s]ubject m atter
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, ¶ 5. 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
plaintiff or regarding the amount in controversy.
The complaint states that plaintiff “resided” in Colorado. Docket No. 1 at 1, ¶ 1.
However, domicile, not residency, is determinative of citizenship. See Kramer v. Sears
Roebuck & Co., 1997 WL 141175, at *3 (10th Cir. Mar. 28, 1997) (unpublished).
Moreover, the complaint does not contain allegations from which the Court could infer
that the amount in controversy exceeds $75,000. Plaintiff alleges that he sent a letter
to defendant Allstate Fire and Casualty Insurance Company indicating that he incurred

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$31,485.72 in medical expenses and suffered $3,599.10 in lost wages. Docket No. 1 at
3, ¶ 24. But plaintiff also alleges that he already recovered $25,000 from the at-fault
driver’s insurance company. Id. at 2-3, ¶¶ 19-21; see also Colo. Rev. Stat. §§ 10-4609(1)(c), 13-21-111.6. Thus, even recovering twice the covered benefit, plaintiff’s
recovery would be approximately $30,000. Plaintiff provides no basis for his attorney’s
fees exceeding $45,000. As a result, the information provided by plaintiff is insufficient
because it does not allow the Court to independently assess the alleged jurisdictional
basis. 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 8, 2018, plaintiff Johnathan Hernandez shall show cause why this case should
not be dismissed 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

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