Dodd v. GEICO General Insurance Company

Filing 4

ORDER TO SHOW CAUSE by Judge Philip A. Brimmer on 04/18/2018. ORDERED that, on or before 5:00 p.m. on April 27, 2018, plaintiff 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-00894-PAB
STACY DODD, SR,

Plaintiff,
v.
GEICO GENERAL INSURANCE COMPANY,
Defendant.

ORDER TO SHOW CAUSE

The Court takes up this matter sua sponte on plaintiff’s complaint [Docket No. 1].
Plaintiff states that this Court has subject matter jurisdiction over this lawsuit pursuant to
28 U.S.C. § 1332. Docket No. 1 at 2, ¶ 6.
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).
Plaintiff alleges that he “is a resident of the State of Colorado” and that
defendant is “believed to be a foreign corporation licensed to conduct business in the
State of Colorado.” Docket No. 1 at 1, ¶¶ 1-2. These allegations are insufficient to
establish diversity for three reasons. First, 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.
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

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omitted)). The residency of plaintiff is therefore not relevant for purposes of diversity
jurisdiction. Second, the Court reads plaintiff’s averment that defendant is “believed to
be a foreign corporation” 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. 08cv-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”); U.S. Fire Ins. Co., 2009 WL
2338116, at *3 (interpreting allegations based on “information and belief” to “mean that
plaintiffs have no affirmative knowledge of a lack of diversity”). Finally, a corporation is
“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). Plaintiff alleges that defendant is a “foreign
corporation” licensed to conduct business in Colorado but f ails to identify the location of
defendant’s principal place of business.
For these reasons, plaintiff’s allegations are presently insufficient to allow the
Court to determine the citizenship of the parties or 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). Accordingly, it is
ORDERED that, on or before 5:00 p.m. on April 27, 2018, plaintiff shall show

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cause why this case should not be dismissed due to the Court’s lack of subject matter
jurisdiction.

DATED April 18, 2018.
BY THE COURT:

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

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