Koneman et al v. American Strategic Insurance Corp.

Filing 17

ORDER TO SHOW CAUSE by Judge Philip A. Brimmer on 07/11/2018. ORDERED that, on or before 5:00 p.m. on July 24, 2018, defendant 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-01623-PAB
ANDREW KONEMAN and
CATHERINE DEAN,
Plaintiffs,
v.
AMERICAN STRATEGIC INSURANCE CORP.,
Defendant.

ORDER TO SHOW CAUSE

The Court takes up this matter sua sponte on defendant’s notice of removal
[Docket No. 1]. Defendant states that the Court has subject matter jurisdiction over this
lawsuit pursuant to 28 U.S.C. § 1332. Docket No. 1 at 1, ¶ 2.
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). Defendant asserts that this Court has diversity jurisdiction under
28 U.S.C. § 1332(a)(1). Docket No. 1 at 1, ¶ 2. Pursuant to that section, “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.” 28 U.S.C. § 1332(a). The facts presently averred are
insufficient to establish the parties’ citizenship.
The notice of removal states that Andrew Koneman and Catherine Dean “allege[]
that they are Colorado residents.” Docket No. 1 at 2, ¶ 5 (citing Docket No. 1-1 at 2,
¶ 1). 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. Holyfield, 490
U.S. 30, 48 (1989) (“‘Domicile’ is not necessarily synonymous with ‘residence,’ and one
can reside in one place but be domiciled in another.” (citations omitted)). Thus, for

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purposes of diversity jurisdiction, plaintiffs’ assertion that they reside in Colorado is not
relevant.
With respect to defendant’s citizenship, the notice of removal states that a filing
with the “Colorado Secretary of State confirms that Defendant [] is a Florida
corporation with its principal office street address in St. Petersburg, Florida” and that a
filing with the “Colorado Division of Insurance shows Defendant is a Florida Corporation
with its mailing address in St. Petersburg, Florida.” Docket No. 1 at 2, ¶ 7 (citing Docket
Nos. 1-2, 1-3). 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). 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). A
corporation’s principal place of business is not necessarily the same as its corporate
address or even its headquarters. Id. at 93. While potentially relevant, the filings
defendant provides indicating defendant’s principal office and mailing address do not
indicate or establish that defendant’s corporate activities are directed from either of the
two different Florida addresses listed on the filings. See Prather v. Williams Prod. RMT
Co., No. 10-cv-02131-CMA-BNB, 2010 WL 5175103, at *3 (D. Colo. Dec. 1, 2010)
(finding a corporation’s principal place of business was in Oklahoma even though its
corporate headquarters was located in Colorado).
Because defendant’s allegations are presently insufficient to allow the Court to

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determine the parties’ citizenship 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), it is
ORDERED that, on or before 5:00 p.m. on July 24, 2018, defendant shall show
cause why this case should not be dismissed due to the Court’s lack of subject matter
jurisdiction.

DATED July 11, 2018.
BY THE COURT:

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

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